Politico

Supreme Court to hear case on GOP ‘independent legislature’ theory that could radically reshape elections


The Supreme Court agreed to hear arguments in a case promoting a controversial legal theory that would consolidate elections power in the hands of state legislatures.

Just after releasing its final opinions of the term Thursday, the Supreme Court announced it would take up the closely watched case, Moore v. Harper, brought by North Carolina’s Republican state House speaker, who challenged the state Supreme Court’s decision to throw out the legislature’s congressional maps over partisan gerrymandering.

The North Carolina Supreme Court ruled in February that the state’s congressional maps violated the state constitution by illegally favoring Republicans. The map — drawn by GOP legislators — could have given the party control of as many as 11 of the closely divided state’s 14 districts.

But the Republican legislators argued in an appeal to the U.S. Supreme Court that the state court had extremely limited authority to police the legislature on federal election matters — a theory known as the “independent state legislature” theory.

The theory holds that state legislatures have near-uncheckable authority to set procedures for federal elections — and state courts have either a limited or even no ability to rule on those laws. The theory is based on a pair of clauses in the constitution, the Electors Clause and the Elections Clause, that mention state legislatures but do not explicitly mention the judiciary.

Republicans have increasingly promoted the theory as a way around state courts that have recently struck down redistricting maps as partisan gerrymanders.

“Some provisions of the Constitution are subject to reasonable debate. Others are not,” read a friend of the court brief from the Republican National Committee and other GOP committees earlier this year.

“Absent from the constitutionally mandated order of authority is any role for the state judiciary,” the brief continued. “Notwithstanding this omission, certain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government.”

A Supreme Court ruling that state legislatures alone have the power to make decisions about federal elections, within the boundaries set by federal law, could have a dramatic impact on redistricting processes and election procedures.

Actions by state legislatures could still be subject to challenge in federal courts, but state courts and even governors could be sidelined under the most expansive interpretations of the “independent state legislature” theory.

With 30 state legislatures currently in Republican hands, GOP state legislative leaders would be strongly positioned to skew maps in their party’s favor and to make changes Republican have sought to voting procedures.

Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — have signaled at least an openness to some version of the theory.

The theory was also central to then-President Donald Trump’s ultimately unsuccessful attempt to get states to appoint a slate of alternate electors in the 2020 presidential contest.

The court is likely to hear arguments in the case late this fall or early next year. The Supreme Court is also set to hear arguments in October in the case Merrill v. Milligan, which election lawyers and civil rights groups worry could undermine the Voting Rights Act.

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