The Biden administration has urged the Supreme Court to reject a Republican bid to re-empower state legislatures to regulate congressional and presidential elections as they say the U.S. Constitution requires, including removing the judiciary’s power to weigh in on redistricting and other disputes.
The legal filing came in a high-stakes case, Moore v. Harper, court file 21-1271, that the Supreme Court is scheduled to hear on Dec. 7.
At issue is the independent state legislature doctrine, an idea embraced by former President Donald Trump that tends to evoke strong opinions among those who follow election law. Although three Supreme Court justices have said the doctrine applied in the Bush v. Gore case that resolved the disputed 2000 presidential election, the court has never ruled on the doctrine directly.
Republicans say the Constitution has always directly authorized state legislatures to make rules for the conduct of federal elections. The political establishment, including Democrats and some Republicans, say this idea is a fringe conservative legal theory that could endanger voting rights. The doctrine, if endorsed by the high court, could allow state legislatures to select presidential electors in disputed elections, something critics decry as a threat to democracy.
The elections clause in Article 1 states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The presidential electors clause in Article 2 gives each state the power to appoint presidential electors “in such Manner as the Legislature thereof may direct.”
North Carolina Republicans, led by petitioner Tim Moore, who is the speaker of the North Carolina House of Representatives, are appealing a ruling by their state Supreme Court that rejected the state Legislature’s electoral map. Respondent Rebecca Harper is one member of a group of 25 North Carolina voters.
“The Court has repeatedly rejected arguments that state constitutional checks on a state legislature’s lawmaking function violate the Elections Clause,” Prelogar’s brief states.
“And the Court has emphasized that ‘state constitutions can provide standards and guidance for state courts to apply’ in addressing partisan gerrymandering, citing a Florida Supreme Court decision that ‘struck down that State’s congressional districting plan as a violation of’ the state constitution.”
More than 70 friend-of-the-court briefs have been filed with the court in the case.
Because state legislatures receive their authority from state constitutions, they must be bound by the state’s founding documents. Legislatures “cannot supersede” state constitutions, the brief continues.
“The legislature cannot circumvent the authority delegated by the state constitution (and the people) to the state courts to review its enactments to ‘vindicate the rights guaranteed by [the state] Constitution.’”
In total, 18 Democrats and two independents who caucus with Democrats, Bernie Sanders (I-Vt.) and Angus King (I-Maine), signed onto the brief.
“The threats to state interests are clear in this case. If state courts are allowed to override legislative decisions based on vague state constitutional provisions,” the rule of law is undermined, states the brief authored by Arkansas Attorney General Leslie Rutledge and Arizona Attorney General Mark Brnovich, both Republicans.
Moore explained in March why he supports the doctrine.
“The U.S. Constitution is crystal clear: State legislatures are responsible for drawing congressional maps, not state court judges, and certainly not with the aid of partisan political operatives,” Moore said.
“We are hopeful that the Supreme Court will reaffirm this basic principle and will throw out the illegal map imposed on the people of North Carolina by its highest court. It is time to settle the elections clause question once and for all.”
