In Moore v. Harper, a dubious legal theory could have dramatic consequences for elections.
In June, the Court
to take up the case, with oral argument scheduled for Thursday, Dec. 7. The Court will likely issue its decision before July 2023.In urging the Supreme Court to reinstate the gerrymandered congressional map, the North Carolina legislators are relying on an untenable misreading of the Constitution’s Elections Clause known as the The Elections Clause delegates to states the power to regulate federal elections while giving Congress the overriding authority to make or alter such laws.
Proponents of the independent state legislature theory—like the gerrymanderers—read the Elections Clause to give state legislators near-exclusive authority to regulate federal elections, prohibiting any other state entity—like state courts or governors—from placing checks and balances on that power. In this case, the gerrymanderers are arguing that the theory licenses them to violate the state constitution when drawing congressional maps, and that the state courts do not have the power to stop them.The independent state legislature theory runs contrary to the constitutional text, history, practice and precedent. state lawmakers, so much so that when they drafted the Elections Clause, they insisted that Congress retain the ultimate power to set the rules for federal elections.
The independent state legislature theory would give state legislatures wide authority to gerrymander electoral maps and pass voter suppression laws.: It would be absurd for a state legislature to be allowed to violate the very state constitution that created it. demonstrates. For these reasons, the Supreme Court has repeatedly rejected the theory for over a century, including as recently as 2015 and 2019.
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