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“The Supreme Court will hear oral argument on Wednesday… The case, Moore v. Harper, is a test of the ‘independent state legislature’ theory – the idea that the Constitution gives state legislatures nearly unfettered authority to regulate federal elections, with little to no interference from state courts.” SCOTUSblog
The right urges the Court to rule in favor of the independent state legislature theory.
“The U.S. Supreme Court’s task in Moore is straightforward. The Elections Clause directs ‘the legislature’ to regulate congressional elections, which includes drawing district maps. State courts aren’t part of the legislative process, and thus the North Carolina Supreme Court was obligated to uphold the General Assembly’s map… Many other constitutional clauses refer to a ‘state,’ but the Elections Clause singles out a state ‘legislature.’…
“Legal commentators pillory state legislatures as partisan bodies and lionize state courts as guardians of democracy—even in states like North Carolina and Pennsylvania, where judges are selected in partisan elections. They also insist that it would jeopardize minority voting rights, which are protected under federal law that won’t be affected by Moore. The core of American democracy is rule by the people through their elected representatives—not by judges, whether elected or appointed.”
David B. Rivkin Jr. and Andrew M. Grossman, Wall Street Journal
“The Supreme Court has previously ruled that, since a governor’s veto authority is usually part of a state’s legislative process, a governor can veto congressional maps passed by a legislature. The court has also held that legislatures can vote to transfer their map-drawing power to a third entity (like an independent redistricting committee), much like Congress is allowed to transfer legislative power to executive agencies…
“But in this case, there was no act by the legislature that transferred congressional map-drawing power to any other entity. What happened in Moore was a naked power grab by Democrats wearing judicial robes…
“Absolutely nothing in the North Carolina Constitution in any way transfers the power to draw congressional maps from the legislature to the courts or any other independent body or to the people via referendum. The Democrats who control the state Supreme Court used just one sentence in the state constitution, ‘All elections shall be free,’ to invent out of thin air a complete and total transfer of power to draw congressional maps from the legislature to the state Supreme Court.”
Editorial Board, Washington Examiner
“The panicked reaction to Moore v. Harper is unconvincing. A legislature is the most democratic branch of government. How is it vital for democracy to let a state court rewrite a voting law passed by elected legislators? No matter the outcome in this case, there are federal guardrails, because state election laws must follow the U.S. Constitution and acts of Congress. The right to vote, for example, is protected by the 14th and 15th Amendments, plus the federal Voting Rights Act…
“Critics even claim that Moore v. Harper could let a state legislature reverse the results of its presidential popular vote. But the U.S. Constitution says Congress ‘may determine the Time of chusing the Electors,’ and federal law says that’s Election Day. A state legislature can’t take back presidential electors after the fact. Any attempt would be a loser in federal court. Despite what you might hear, Moore v. Harper has nothing to do with Donald Trump.”
Editorial Board, Wall Street Journal
The left worries that the Court will rule in favor of the independent state legislature theory.
The left worries that the Court will rule in favor of the independent state legislature theory.
“The independent state legislature theory is based on a very literal interpretation of a line in the U.S. Constitution (in Article 1, Section 4), which reads: ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.’ The key words are ‘legislature thereof,’ which proponents of the ISL theory take at face value…
“Opponents of this theory argue that historical context and centuries of precedence show that ‘legislature’ means all of the state bodies that are generally involved in setting laws, including not only legislatures but also constitutions, courts and election boards. And in fact, in its ruling in Rucho v. Common Cause, the Supreme Court explicitly noted that federal courts shouldn’t be weighing in on partisan gerrymandering … but state courts could, based on state statutes and constitutions.”
Kaleigh Rogers, FiveThirtyEight
“As held by the leading Supreme Court case decided over a century ago in 1916, the Framers understood that sentence to refer to the state’s ‘legislative power,’ which would include ‘the state constitution and laws.’ One scholar recently documented that, in the decade after ratification of the original Constitution, all but one state adopted ‘state constitutional provisions regulating federal elections,’ which ‘would make no sense if the Founding era understood the federal Constitution to bar [such constraints on the legislature’s power].’…
“And since the founding era, precedent and practice have consistently followed that common sense understanding. As recently as 2019, Chief Justice Roberts elaborated, in approving detail, how state courts have applied their state constitutions to check partisan gerrymandering in congressional elections. Three years later, embracing the North Carolina legislators’ ISLT claim would be hard, indeed, to square with that pronouncement.”
Simon Lazarus, New Republic
“An array of conservative luminaries filed briefs practically begging the Supreme Court not to do any of this… There’s an amicus brief signed by Steven Calabresi, a founder of the conservative Federalist Society and the co-chair of its board, warning that the Moore petitioners ‘flout core tenets of the American Founding.’ A brief by Benjamin Ginsberg, for many years the Republican Party’s top election lawyer, warns that the ISLD would ‘create untenable legal uncertainty around elections’ and ‘increase the odds that state legislatures replace the popular vote with their own political preferences.’…
“Under the strongest form of this doctrine, members of each state’s legislative branch have unchecked authority to decide how elections for Congress and the presidency will be conducted in their state — indeed, a state legislature could potentially pass a law canceling the presidential election in that state and awarding its electoral votes to Donald Trump. Any state constitutional provisions that protect the right to vote, that limit gerrymandering, or that otherwise constrain lawmakers’ ability to skew elections would cease to function.”
Ian Millhiser, Vox
