— Washington Wednesday, the Supreme Court will hear arguments in a landmark redistricting case from North Carolina. Experts have warned that the case may disrupt elections nationally and give state governments unfettered control over voting regulations.
Moore v. Harper originates from the redrawing of the congressional map by North Carolina’s GOP-led legislature after the 2020 Census, which was thrown down by the state supreme court as an excessive political gerrymander in violation of the North Carolina Constitution.
At the center of the dispute, however, is a little-known doctrine known as the “independent state legislature theory,” which had largely lain dormant for more than 15 years before being resurrected by former President Donald Trump and his allies in an effort to overturn the results of the 2020 presidential election.
Under the idea, which North Carolina Republican leaders are urging the Supreme Court to accept, the Constitution confers sole authority to state legislatures for adopting federal election standards, without state court scrutiny to ensure that these laws accord with state constitutions.
In 2000, then-Chief Justice William Rehnquist cited a variant of the theory in his concurring opinion in Bush v. Gore, and more than two decades later, three conservative Supreme Court justices — Samuel Alito, Clarence Thomas, and Neil Gorsuch — have voiced sympathy for the theory. A fourth justice, Brett Kavanaugh, asked the court to take a case that raises the question of whether state courts lack the authority to examine state legislators’ acts regarding federal election laws and district boundaries.
As oral arguments approach, however, it is uncertain if a majority of the justices are prepared to support the idea, and some court observers are pessimistic that the Supreme Court would do so.
The North Carolina Republicans’ argument hinges on the phrase “Legislature” in the language of the Constitution’s Elections section, which states that the procedure of federal elections should be “established in each state by its legislature.”
“This textual choice has an apparent and inevitable consequence: only state legislatures have the authority to oversee federal elections,” attorneys for North Carolina Republican leaders said in a brief filed with the Supreme Court.
Invoking history, the Constitution’s language, and Supreme Court precedent, the Republican state legislators argued that the Constitution’s “well constructed lines leave the control of federal elections in the hands of state legislatures, Congress, and no other entity.”
But voting rights groups, North Carolina voters, and state elections officials all told the Supreme Court that founding-era history, post-ratification history, the text and structure of the Constitution, and Supreme Court precedent all contradict their Republican opponents’ claim that state legislatures have sole authority to set federal elections rules.
Lawyers for the nonprofit organization argued in a brief, “It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disrespectful of this Court’s precedent, and so potentially damaging to American democracy.”
North Carolina voters and voting rights organizations, who are urging the court to reject the independent state legislature theory, warned that adopting the GOP-proposed theory would “wreak havoc” by requiring state elections officials to run two elections simultaneously: one for state elections governed by state constitutions, and another for federal elections.
While the issue stems from the North Carolina redistricting process, experts warn that a ruling in favor of the independent state legislative hypothesis might have far-reaching implications for election regulations.
More than 170 state constitutional protections, 650 state statute provisions, and hundreds of administrative rules issued by election authorities would be at danger, according to Tom Wolf, deputy director of the Brennan Center for Justice’s Democracy Program. In addition, he projected that the adoption of the independent state legislature would increase political gerrymandering since state courts would no longer evaluate congressional district plans under state constitutions.
Longtime Republican election attorney Ben Ginsberg told reporters in a briefing that he doubts the Supreme Court will completely adopt the autonomous state legislative idea and “allow state legislatures run unchecked” after 230 years.
Professors William Baude and Michael McConnell have suggested that the Supreme Court may instead issue a ruling prohibiting state courts from having a legislative role when formulating remedies for state constitutional infractions.
The lawsuit has received friend-of-the-court papers from a plethora of politicians, voting and civil rights groups, lawmakers, historians and experts, and the opposition to the autonomous state legislative notion is robust and nonpartisan.
In a significant filing, the Conference of Chief Justices, composed of the chief justices or judges of the highest courts in all 50 states, informed the Supreme Court that the Elections Clause “does not affect States’ decisions to authorize judicial review of state laws, including under state constitutions.”
A number of well-known Republicans, including former federal judge Michael Luttig, former California Gov. Arnold Schwarzenegger and Ginsberg have warned that forbidding state courts from reviewing election laws under state constitutions would imperil the checks and balances that constrain state legislatures when regulating federal elections.
Luttig is a member of the legal team defending the nonprofit organizations and voters in the Supreme Court dispute.
A court ruling is anticipated before the end of June.
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