Supreme Court takes up case on ‘independent state legislature’ theory regarding authority over elections procedure

The Supreme Court issued several significant rulings in the term that just concluded but is poised to consider what could arguably be one of the most consequential cases in the next term that begins in the fall — one that involves the extent of the roles state legislatures and state courts play in the federal elections process.

The high court agreed to take up a case that deals with what is known as the “independent state legislature” theory in relation to governing elections, and given that Republicans control a majority of state legislatures, Democrats and their allies are rather concerned, Politico reported.

State legislatures have the authority, not state courts

Moore v. Harper, the case that the Supreme Court will review in the coming term, involves a challenge filed by the top Republican in North Carolina’s state House against the North Carolina Supreme Court’s decision to scrap the redistricting map passed by the GOP-controlled state legislature and instead impose a new map on the state drawn by experts chosen by the court.

This is where the “independent state legislature” theory comes into play, which posits that the U.S. Constitution granted authority to govern federal elections to the state legislatures alone and that state courts have extremely limited, if any, actual power to interfere in the legislatures’ decisions.

To bolster that argument, proponents of the theory point to Article I, Sec. 4 of the Constitution, the Elections Clause, which simply states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” albeit within the constraints set by Congress as federal law.

The theory is also based in part on Article II, Sec. 1 of the Constitution, the Electors Clause, which states: “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,” regarding presidential elections.

Politico noted that advocates of the “independent state legislature” theory assert that those two clauses make mention only of the powers vested in the state legislatures about federal elections and make no mention whatsoever of state courts — which suggests the state courts play no actual constitutional role in terms of oversight or as a check on the legislatures with regard to laws governing how federal elections are conducted in the individual states.

“Absent from the constitutionally mandated order of authority is any role for the state judiciary,” an amicus brief filed by the Republican National Committee stated. “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.”

The theory has some support among certain justices

SCOTUSblog reported that this particular theory has been around for at least a few decades and, based upon prior concurring and dissenting opinions in other cases, appears to have some measure of support from at least four current members of the Supreme Court — Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas.

It came up for some discussion in the Bush v. Gore case following the 2000 election, in which the Florida Supreme Court ordered a recount, and again during the 2020 election, in which Pennsylvania Republicans unsuccessfully challenged a Pennsylvania Supreme Court ruling regarding the acceptance of mail-in ballots after an election had been held.

Politico reported that Democrats are now worried that Republicans will use this North Carolina case to establish a precedent that would limit the ability of state courts to interfere with election rules and regulations set by state legislatures. Indeed, the outlet stated, “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 Republicans have sought to voting procedures.”

Now that the Supreme Court has granted review of the Moore v. Harper case, oral arguments will be heard at some point in the fall and a ruling will likely be issued at some point early in 2023.

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