I'll be following today's oral argument in #MooreVHarper and will do tweet thread here. For overview of issues, see my three posts: https://t.co/7dW0ukyXO9https://t.co/ln1GLw7LGjhttps://t.co/H9vISnCSBX— Ed Whelan (@EdWhelanEPPC) December 7, 2022
After North Carolina's Democratic-leaning Supreme Court ruled along party lines that a redistricting map adopted by the Republican legislature violated a vague provision in the state constitution that guaranteed free elections, the North Carolina Supreme Court blocked the new map and ordered the trial court to either approve or adopt yet another map expeditiously. But rather than waiting for the Legislature to do its job and draft a new map, a panel of three court-appointed experts came up with a new map, which was promptly adopted by the court.
Relying on the Independent State Legislature Theory, Legislative Petitioners challenge this map and argue that the United States Constitution grants state legislatures exclusive authority to regulate federal elections under the Elections Clause and the Electors Clause, which state:
"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."
"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."
Pointing to the plain text of these two clauses, Petitioners argue that state courts have no power to interfere in federal elections and may not substitute their policies in place of those prescribed by the legislature. Liberal groups see the acceptance of the Independent State Legislature Theory by a majority of the Supreme Court as an unjustified check on their power to frustrate the will of the people through frequent recourse to state courts, callnig the theory "dangerous" and "novel."
But it is hard to see how a theory that relies upon the plain text of the Constitution can be "dangerous", particularly one that returns the power of deciding the time, place, and manner of holding elections to the voters themselves. It is also not a "novel" theory, having been originally raised by Chief Justice Rehnquist in Bush v. Gore, back in 2000. Additionally, although the case was not taken up the Supreme Court back in the 2020 election, largely due to the press of time before the approaching election, Justice Alito filed an opinion (joined by Justices Thomas and Gorsuch) suggesting that Pennsylvania's extension of the mail-in ballot deadline violated the Elections Clause of the Constitution.
Following the extended arguments at the Supreme Court this morning, it was unclear how the justices would ultimately rule. Justices Thomas, Alito and Gorsuch seemed to ask questions of both sides consistent with their prior stated viewpoints on the Independent State Legislature Theory, while Justices Roberts, Kavanaugh, and Barrett seemed to explore a middle ground that would allow for a federal court's oversight of a state court's decision as long as the state court displayed a certain level of lawmaking. The three liberal justices clearly remain opposed to the whole notion.
A decision is expected by June 2023 and may well impact the 2024 Presidential Election.
Join RNLA for a live discussion this Friday with the Counsel for Petitioners David Thompson and Law Professor Derek Muller discussing the case. This webinar will take a deep dive into the independent state legislature theory and how it can be applied to ensure judicial activists cannot interfere with free and fair elections. RSVP here!