Here & Now

Janine Geske on the 'Independent State Legislature Theory'

Frederica Freyberg:

A highly anticipated U.S. Supreme Court case set for oral arguments next week has legal experts sounding the alarm on its implications for every state, perhaps most especially including Wisconsin. The high court takes up a case originating out of North Carolina where that state’s high court struck down Republican-drawn congressional maps calling them an egregious partisan gerrymander. Republicans there then appealed to the U.S. Supreme Court arguing state legislatures have sole authority to set rules for elections, including voting maps, election rules and outcomes. Former Wisconsin Supreme Court justice Janine Geske joined in a brief calling on the high court to reject this independent state legislature theory. She joins us now. Thanks very much for being here.

Janine Geske:

My pleasure.

Frederica Freyberg:

So why are you sounding the alarm on this?

Janine Geske:

I think — first I think it’s under the radar for people to understand the court is considering the fact that there will be no state court review of any actions by legislatures on congressional races. So how the election rules are set, how people vote, how they are counted, and ultimately how the lines are drawn will not be reviewable by state courts. That’s pretty unique. The governor has no veto power over it and the courts have no reviewability, so I think it is really important. Really taking away the voice of the people through the independent judiciary and having legislatures make the final call on this. In North Carolina the court held that it violated, what the legislature had done violated, the North Carolina Constitution. And, you know, the U.S. Supreme Court is being asked to throw that out and say it’s not up to North Carolina courts to decide that.

Frederica Freyberg:

So in the case of Wisconsin should that come to pass that the high court agreed with the North Carolina Republicans, Wisconsin’s outsized Republican majority legislature certainly could throw its weight around. But would it in your mind?

Janine Geske:

I think it would, you know. The Republican-led legislature has been doing a lot of work on elections and changing voting rules and, you know — but fortunately there is always that reviewability of the court. In some cases, even though we have a court that’s divided, some cases have reversed some of the things the legislature has done and some have affirmed it. But not to have that reviewability would give more power to the legislature. I have no doubt that they would take it.

Frederica Freyberg:

So this theory, which you would is pushed by extreme partisans, seems is exactly what was at play when Republican false electors in Wisconsin tried to toss out Biden’s slate for Trump electors. Where do you think the U.S. Supreme Court will go with this?

Janine Geske:

It’s interesting. There are at least four justices, the more conservative ones that have voiced an interest in this theory. John Roberts has as well. I don’t think John Roberts will do something to take power away from the state courts. That’s just my sense. He feels very strongly about the importance of the judiciary and the independence of the judiciary and actually there is an amicus brief representing all the chief justices from all 50 states asking the court not to adopt this legislative theory. And I have — it’s just sort of a gut feeling from watching John Roberts that he won’t go along with it. In which case they wouldn’t have enough votes. But we’ll see with the argument next week.

Frederica Freyberg:

What will you be listening for from justices?

Janine Geske:

Actually John Roberts. The kinds of questions he’s going to be asking. I mean I think the conservative ones have indicated they are doing a very narrow and not very popular reading of the U.S. Constitution in terms of control of elections and they’ve written on that in the past. I can’t imagine anybody else who, you know, the more moderate or liberal or whatever you want to call them justices would go that way. I really think it’s up to John Roberts to make the call. So I’ll be real interested in what he is asking them. In particular what he is asking the Republicans who have brought this suit about taking away the power of the state courts.

Frederica Freyberg:

In the end, how in your mind would giving legislatures sole authority over elections thwart the will of the people?

Janine Geske:

Well, it would take — you know, in our state, we elect an independent judiciary to be a check and balance on our governor and on the legislature. It would take that check and balance away. And the only attack would be through a federal court if a federal court would take it. So it really does take that independent review by the state, consistent with the state constitution, of whether this was a lawful gerrymandered or whether it’s a lawful rule. I think that we’ve seen how important that is over the last several elections, where people are arguing about whether elections are valid or invalid and how you count votes and things. I think not to have reviewability in the state is very dangerous.

Frederica Freyberg:

Former Supreme Court justice state of Wisconsin Janine Geske, thanks very much.

Janine Geske:

You’re welcome.