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Supreme Court takes up new bombshell elections case

Voting tags at St. Augustine College are on display as Chicago voters hit the polls on April 2, 2019. (Antonio Perez / Chicago Tribune/TNS)
June 30, 2022

The United States Supreme Court announced on Thursday that it will consider a case that could dramatically change how federal elections are conducted by reviewing the “independent state legislature” theory, which would give state legislatures the authority to set rules for federal elections even if those rules violated state constitutions or helped facilitate partisan gerrymandering.  

The case in question is Moore v. Harper, in which the North Carolina GOP argued that the state legislature could enact voting laws and write district maps free from the courts scrutiny.

The theory comes from the “Elections Clause” in Article 1, Section 4 of the U.S. Constitution, which states, “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.”

In their petition to the Supreme Court, North Carolina’s Republican lawmakers asserted that state courts could not question the legislature.

“By its plain text, the Elections Clause creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature” of each State,’ ” they wrote. “It does not leave the States free to limit the legislature’s constitutionally vested power, or place it elsewhere in the State’s governmental machinery, as a matter of state law.”

The North Carolina Department of Justice argued that the Supreme Court should not examine the issue.  

“Two decades ago, the North Carolina General Assembly passed a law expressly codifying the state courts’ authority to review legislative redistricting efforts,” the state’s brief stated. “At the same time, the legislature specifically authorized the state courts to ‘impose an interim districting plan’ in situations like the one giving rise to this appeal. The North Carolina state courts thus have not ‘taken it upon themselves to set’ federal elections rules — the state legislature itself designed a statutory redistricting regime that expressly contemplates the courts’ involvement.”

Earlier this year, Justice Samuel Alito predicted that the state legislature in North Carolina “would succeed” in its argument, according to The Washington Post.

“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” wrote Alito, joined by Thomas and Gorsuch. “I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”

In the months before the 2020 presidential elections, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh showed support for state legislatures over state courts with regards to rules for federal elections.

The Supreme Court will hear the case in the term that begins in October.