The U.S. Supreme Court building. (Photo by Phil Roeder/Getty Images).
The U.S. Supreme Court could soon grant state legislatures unconditional control over federal elections, clearing the way for lawmakers to gerrymander their states with impunity and pass voter restriction measures without interference from state courts.
The high-stakes election case, Moore v. Harper, comes out of North Carolina after its Republican-controlled legislature passed in November 2021 a gerrymandered redistricting map, which gave Republicans a big advantage in U.S. House seats.
If the nation’s highest court rules in favor of allowing the gerrymandered map, it may do so based on a novel argument — the so-called independent state legislature theory — that would also allow legislatures to enact laws to make it harder to vote in federal elections without review from state courts. Legislatures could shorten the early voting period, restrict mail-in balloting to certain counties and require voter ID, among other measures.
The ramifications could be far-reaching: A heavily partisan and already gerrymandered state legislature — as in Wisconsin — could put its thumb on the scale without having to worry about a state court interfering, thus ensuring big victories for their party in congressional elections and locking in rule.
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“Our government will be run by and for the politicians, not the people,” said Suzanne Almeida,* Common Cause’s director of state operations, during a Wednesday conference call with reporters. “The danger is not just that partisan political leaders will handpick winners and losers … It’s that we the people will no longer have a fully representative government.”
After the North Carolina Legislature approved the gerrymandered map, nonprofit organizations brought the case to the North Carolina Supreme Court, which ruled in February that the map was unconstitutional and blocked the state from using the map in the 2022 election.
Republican lawmakers later that month asked the U.S. Supreme Court to block the North Carolina Supreme Court’s ruling and allow them to use the gerrymandered map for the primary election.
They based their argument on the independent state legislature theory.
The argument, which has been widely debunked by constitutional scholars, relies on the notion that state legislatures have exclusive power over federal elections. Its proponents cite the U.S. Constitution’s election clause: “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.”
The legal argument is over one word in the clause: legislature. The centuries-long precedent has been to interpret the “legislature” as a state’s overall lawmaking process, which includes state courts. Proponents of the independent state legislature theory say the nation’s founders strictly meant that a state legislature shall administer federal elections —not the state courts, the executive branch or any other state law-making entity.
Administration of the presidential election is under a different clause, so at stake is solely the administration of congressional elections.
The U.S. Supreme Court denied the North Carolina lawmakers’ request to use the gerrymandered map for the primary in early March 2022. The U.S. Supreme Court’s most conservative justices, Samuel Alito, Clarence Thomas and Neil Gorsuch, dissented.
“This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections,” said Alito, who authored the dissent. “There can be no doubt that this question is of great national importance.”
Lawmakers returned to the U.S. Supreme Court in late March 2022, and the U.S. Supreme Court granted review of the case.
Voting rights activists are pushing to make the case more well-known, hoping the public will reject a wholesale takeover of election administration by state legislatures, which are often more concerned with the accumulation of power than free and fair elections. Common Cause has members on the ground in North Carolina to inform people about the case and how their vote may be at stake if the U.S. Supreme Court rules in line with the independent state legislature theory.
There is no date scheduled for oral arguments in Moore v. Harper, but the court will likely hear oral arguments in either December or January, and a decision will come early next year.
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