The U.S. Supreme Court convened its new session in Washington on Oct. 3 with a crowded docket that included cases related to affirmative action, LGBT issues, and freedom of speech and religion.
Among the most closely watched cases slated for the term, which could see hearings extend into next summer, is a challenge to the North Carolina Supreme Court’s 2021 rejection of the state legislature’s revised post-2020 census maps for the state’s 14 congressional districts.
In placing Moore v. Harper on its docket, the nation’s highest court has agreed to resolve a decades-long debate over the “independent state legislature theory,” which maintains that the U.S. Constitution vests election regulation entirely with state lawmakers to the exclusion of other elected officials, appointed bureaucrats, and the courts as long as their actions comply with state and federal laws.
In their appeal of the North Carolina Supreme Court’s ruling, which determined that the redrawn congressional district maps were unconstitutionally gerrymandered, lawmakers argue that under their interpretation of the U.S. Constitution, the “independent state legislature theory” renders state courts powerless in matters relating to federal elections, including how state lawmakers draw congressional district maps.
Several briefs have been filed in the appeal. Through late September, 21 briefs had been lodged, with 16 in support of the appellants and five arguing for “neither party.”
Theory proponents, including election integrity advocates and conservative groups from across the country, say they seek to cuff state courts from “acting like super legislators” while asserting state legislatures’ right as “necessary parties” to participate in all election-related lawsuits.
Among groups filing briefs in support of the theory are the Honest Elections Project (HEP), the Republican National Committee, the Republican Caucus of the Pennsylvania Senate, the Citizens United Foundation, and the American Legislative Exchange Council.
“It is interesting” how the theory “has attracted a lot of attention” in the past two years despite being “teed up many times over the years” with little notice, HEP Executive Director Jason Snead told The Epoch Times on Oct. 3.
The theory isn’t new, but “because so many election lawsuits have been filed” since the 2020 election, he said its validity must be verified to end judicial activism and reaffirm the Constitution’s original intent.
“The courts have been willing to involve themselves” into elections by issuing “election-determinative rulings” and “black-letter election laws,” which appellants argue are unconstitutional and should be clearly defined as such, Snead said.
HEP, created in February 2020 by the Federalist Society to spearhead election integrity initiatives, maintains in its brief that the North Carolina Supreme Court used “unprecedented interpretations of vague parts of the state constitution to seize control over congressional redistricting” and that its ruling “sets a dangerous precedent: that rogue courts can ignore the U.S. Constitution and rewrite the laws of our democracy behind closed doors.”
The theory is rooted in two articles of the U.S. Constitution.
Article I states that state legislatures have the authority to determine “times, places and manners of holding elections for Senators and Representatives.” Article II states, “each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” in presidential and vice presidential elections.
Snead said HEP’s brief “is pointing out that the word ‘legislature’ in the election clause has a meaning ... [that] legislatures are specifically selected to be the main body in crafting election laws,” and that the “legislature is not part of ‘the state as a whole’” that includes judges, cabinet officials, governors, “and unelected bureaucrats” in administering elections.
The doctrine was a prominent component in legal challenges before the U.S. Supreme Court in the wake of Florida’s disputed 2000 election.
The court overturned a Florida Supreme Court ruling that cited “suffrage principles” in the state’s Constitution to allow manual recounts.
In throwing out the ruling, the court determined that when the state legislature enacted the law governing presidential electors, it was “not acting solely under the authority given it by the people of the state, but by virtue of a direct grant of authority made under Article II of the United States Constitution.”
However, most legal scholars argue that 130 years of court rulings make the application of a theory using an originalist interpretation of “solely” in the U.S. Constitution untenably moot.
Opponents say the 14th Amendment states that each citizen’s vote must be counted and cite safeguards in the U.S. Constitution and federal law, such as the Electoral Count Act’s “safe harbor” provision, that ensure that the popular vote determines Electoral College electors and, thus, can’t be determined by state lawmakers.
Critics say the theory gives “intellectual cover” to a gambit by Republicans to “solely” grant state legislatures the power to override popular votes.
The left-leaning Brennan Center for Justice stated that if the court embraces the “theory for the first time ... it could wreak havoc on American democracy.”
“The benefit of technical arguments under the independent state legislature doctrine to subvert election results is (proponents) have an aura of respectability and expertise,” University of California–Irvine School of Law legal scholar Richard Hasen wrote in a 2021 Harvard Law Review Forum article, calling the doctrine “a strong vehicle for a bloodless coup.”
Snead and Hans von Spakovsky, the Heritage Foundation’s election law reform initiative manager, say that much of the criticism is politically motivated.
“I think it’s a great case,” von Spakovsky told The Epoch Times on Oct. 4. “What astonishes me is seeing the hysteria on the left about this case and the complete and total exaggerations being made,” claiming that if the court upholds the appeal, “it will destroy voting rights in this country and state legislatures would have the green light to do anything they want. That is an absurd claim.”
The question to be resolved in Moore v. Harper is “whether a state’s judicial branch may nullify the regulations governing the ‘manner of holding elections for Senators and Representatives ... prescribed ... by the Legislature thereof, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”
Von Spakovsky said the case isn’t about giving state legislatures more authority, but rather about reclaiming it from the courts, noting that there are some states where a state legislature can’t defend its laws as a litigant when a law it passed is challenged in court. The state itself defends the law.
Appellants want state legislatures’ right as “necessary parties” to participate in all election-related lawsuits affirmed and state courts’ ability to intervene restricted.
Under the U.S. Constitution, legislators are “not bound by state laws, but obviously, they are bound by the federal Voting Rights Act, which says they cannot discriminate,” according to von Spakovsky.
He said the appeal seeks a verdict that states that “the state Supreme Court cannot simply step in when there is no evidence of any kind that the state legislature has violated the state constitution or state laws or federal laws, saying, ‘You know, you use too much politics, so we’re going to do the district maps.’”
When the court agreed in June to hear the case, three justices—Samuel Alito, Clarence Thomas, and Neil Gorsuch—expressed interest in discussing the theory. Justice Brett Kavanaugh said he saw “serious arguments” on both sides.
In accepting the case, Thomas said there was an urgency to resolve the issue “outside the crucible of a presidential election.” Snead noted that the case hasn’t “been calendared” through November, suggesting that the soonest it will be heard is in December.
