Supreme Court to hear redistricting case that could upend state election laws everywhere
Written by ABC Audio All Rights Reserved on July 1, 2022
(WASHINGTON) – The Supreme Court announced Thursday it will hear a case this fall that could upend state election laws across the country.
Moore v. Harper focuses on a new North Carolina voting map created by court-appointed experts after earlier maps proposed by the Republican-led state legislature were struck down.
The North Carolina Supreme Court in February ruled that the maps offered by the state general assembly were partisan gerrymanders, violating free speech, free assembly and equal protection provisions of the state constitution.
But the state legislature appealed that decision to the U.S. Supreme Court, which has agreed to take up the issue of redistricting and possibly restore the Republican-drawn map.
Central to the petitioners’ argument is the so-called “independent state legislature” theory — a fringe legal concept pushed by a small group of conservative advocates that would give state legislatures broad authority to run federal elections without the traditional oversight from a state constitution or judiciary, whom these advocates argue have no right to intrude on elected representatives.
Observers say there could be major ramifications from the Supreme Court’s eventual decision.
“This has the potential to change the rules of the game in far-reaching ways in time for the next presidential election,” ABC News Political Director Rick Klein said. “Depending on how far the Supreme Court goes, it could virtually invite Republican-controlled legislatures to rewrite centuries-old laws ensuring that the candidate who gets the most votes in a state gets its electoral votes — and it even could free legislatures to pick electors on their own.”
“It could wind up making it far easier for a future state legislature to actually do what Trump allies so desperately wanted done in the messy aftermath of the 2020 election,” Klein added.
The “independent state legislature” theory argues that under the U.S. Constitution’s Elections Clause and Electors Clause, state legislators can determine how elections are conducted without checks and balances from the other governmental actors such as state constitutions, courts or gubernatorial vetoes.
The Elections Clause 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 [choosing] Senators.”
The Electors Clause states that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
The Electors Clause was central to the unsuccessful plot by former President Donald Trump and his allies to use “fake electors” to overturn his 2020 loss to President Joe Biden.
Thomas Wolf, deputy director with the Brennan Center’s Democracy Program, said the theory contradicts the intent of the Constitution’s framers.
“It’s contrary to 200-plus years of practice, the way we actually run elections, and it’s contrary to over a century’s worth of Supreme Court precedent,” Wolf told ABC News. “It’s also just disastrous as a policy matter.”
Wolf warned that the argument, if accepted by the high court, could lead to the elimination of protections against discrimination for voting and strip election administrators of their ability to efficiently run and regulate elections.
The North Carolina Supreme Court said back in February that the theory would “produce absurd and dangerous consequences.”
North Carolina House Speaker Tim Moore celebrated the U.S. Supreme Court’s decision to take up the case, stating on Thursday that he was “confident” the justices would agree with their view that the U.S. Constitution “explicitly gives the General Assembly authority to draw districts.”
“This case is not only critical to election integrity in North Carolina, but has implications for the security of elections nationwide,” Moore argued.
The Supreme Court first confronted the case in March, when North Carolina’s state legislature sought emergency relief. The justices ultimately denied that request, but three conservative on the bench said they would have granted a stay of the North Carolina Supreme Court’s order.
“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,” Justice Samuel Alito wrote in the dissent. He was joined by Justices Clarence Thomas and Neil Gorsuch.
Helen White, counsel at the nonpartisan group Protect Democracy, in a press call Thursday noted the Supreme Court ruled on the matter of partisan gerrymandering just three years ago.
In Rucho v. Common Cause, the court said while it wouldn’t step in to police partisan gerrymandering, state courts and constitutions were a means of regulating gerrymandering in congressional elections.
White said if the court were now to adopt the “independent state legislature” theory, it would be a “radical pivot from what they themselves have said about the issues in this case.”
Moore v. Harper will be argued before the nine justices in the term beginning this October, with a decision handed down in time for the 2024 campaign.
ABC News’ Devin Dwyer contributed to this report.
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