Supreme Court justices on Dec. 7 grilled an attorney for North Carolina Republicans who was arguing the U.S. Constitution gives state legislatures preeminent authority to make the rules for presidential and congressional elections without interference from the courts.
The case is important because, if the high court finds for North Carolina, the rules governing how states regulate federal elections could change dramatically. The hearing comes at a time when tensions between Republicans and Democrats over voting procedures have been growing in light of former President Donald Trump’s continuing claims that the 2020 presidential election was marred by massive electoral fraud.
At issue is the once-obscure Independent State Legislature Doctrine, under which Republicans argue the Constitution has always directly authorized state legislatures alone to make rules for the conduct of federal elections in their states.
Democrats say this doctrine is a fringe conservative legal theory that could endanger voting rights, enable extreme partisan gerrymandering in the redistricting process, and cause upheaval in election administration.
Left-wing law professor Richard Hasen has called the doctrine the “800-pound gorilla” of election law.
“In its most extreme form, it would not only rework the balance of power in protecting voting rights in states from state supreme courts and executive agencies to state legislatures,” but would “give the Supreme Court a potential excuse to interfere with presidential election results any time a state court or agency has relied on a state constitution to give voters more protections than those afforded by the U.S. Constitution.”
Conservatives, on the other hand, say the doctrine is the application of common sense and would restore reasonable rules on the electoral playing field and allow elected state officials, instead of judges, to make election rules.
The Supreme Court has not ruled on the doctrine directly but some justices have said it could have been argued in the Bush v. Gore case that resolved the disputed 2000 presidential election.
The doctrine, if endorsed by the high court, could in theory allow state legislatures to select presidential electors in disputed elections, something critics decry as a threat to democracy.
When he launched the appeal in March, Tim Moore, a Republican who is the speaker of the North Carolina House of Representatives, said the 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 is appealing the Supreme Court of North Carolina’s order redrawing the state’s electoral map against the wishes of the state’s GOP-majority legislature.
Two key clauses in the U.S. Constitution lay out the rules governing federal elections in the states.
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 states gives each state the power to appoint presidential electors “in such Manner as the Legislature thereof may direct.”
The case is Moore v. Harper, court file 21-1271.
During oral arguments on Dec. 7, liberal justices pushed back against the doctrine, while conservative Justices Clarence Thomas and Samuel Alito seemed largely receptive to it.
Moore’s attorney, David H. Thompson, told the justices that the two constitutional provisions have been misinterpreted for years.
“The elections clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections,” Thompson said.
“States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function … and it is federal law alone that places substantive restrictions on states legislatures’ performing the task assigned them by the federal Constitution.”
“For the first 140 years of the republic, there was not a single state court that invalidated on substantive grounds any congressional redistricting plan,” Thompson said.
Precedent holds that “the Founders tasked state legislatures with federal functions that transcend any substantive limitation sought to be imposed by the people of the state.”
Justice Clarence Thomas wondered aloud if the court had authority to consider this case.
Thomas asked Thompson what “the basis of our jurisdiction” was given that “we don’t normally review state supreme courts’ interpretation of state constitutions.”
Thompson said that the Supreme Court of North Carolina’s decision reflects the state’s law but is still “a violation of the elections clause and that’s why we’re here.”
Justice Sonia Sotomayor told Thompson his argument wasn’t resonating with her.
“If judicial review is in the nature of ensuring that someone’s acting within their constitutional limits, I don’t see anything in the words of the Constitution that takes that power away from the state.”
Justice Ketanji Brown Jackson asked Thompson if it was his argument “that the state constitution has no role to play—period—in terms of imposing substantive limits on the exercise of that federal function.”
Thompson confirmed that was his position, saying a state constitution may require that an election measure be presented to a governor for approval or veto.
Justice Elena Kagan told Thompson that Supreme Court rulings present a lot of “problems” for his argument.
The doctrine under discussion “gets rid of the normal checks and balances on the way big governmental decisions are made in this country, and then you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”
“Think about consequences because this is a theory with big consequences,” she said.
The doctrine would empower state legislatures to carry out the “most extreme form of gerrymandering,” while imposing “all manner of restrictions on voting” and curtailing “all kinds of voter protections.”
This is a developing story. This article will be updated.
From The Epoch Times