Advanced by North Carolina’s Republican legislative leaders, the “independent state legislature theory” could negate a governor’s veto, end the oversight of courts enforcing the state constitution and cast doubt on citizen-implemented initiatives aimed at taking partisan politics out of map-drawing and election rules.
If the argument is revolutionary, it is also simple. The leaders wrote in a brief to the court that the Constitution “assigns state legislatures the federal function of regulating congressional elections. . . . Because this directive is supreme over state law, the States may not limit the legislature’s discretion.”
But the Supreme Court has never ruled that the Constitution’s recognition that the legislature leads the process should replace the normal mechanisms of government, in which legislators are constrained by the state constitution and overseen by state courts. Part of the argument Wednesday will center on the meaning of the word “legislature” in the Founding Fathers’ minds.
The importance of the case is magnified by the nation’s polarized and disruptive political landscape, with hundreds of election-deniers seeking public office and former president Donald Trump and his allies waging lengthy battles to undermine confidence in and reverse the results of the 2020 election. Last month’s elections showed that control of Congress can depend on the manipulation of a handful of congressional district lines. Polls show record Democratic distrust of a Supreme Court dominated by justices nominated by Republicans.
A study by the liberal Brennan Center for Justice said that accepting North Carolina’s argument, which is supported by other Republican-led states, would endanger hundreds of state constitutional provisions and state court decisions and more than a thousand delegations of authority to officials, commissions and others.
And because there is a similar reference to “legislature” in an accompanying provision of the U.S. Constitution regarding presidential elections, the stakes are even higher, the center’s report said. “The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors.”
Law professor John Eastman, representing Trump in post-election challenges in 2020, advanced just such a theory.
Moore v. Harper challenges the North Carolina Supreme Court’s decision to replace a partisan congressional map with one judges found more in tune with the state constitution’s guarantee of free elections. It has drawn enormous and strident interest — mostly from critics warning the justices they are about to make a big mistake. Only 16 of the nearly 70 amicus briefs filed with the Supreme Court side with North Carolina’s legislative leaders.
The opposition includes not only includes civil rights organizations and Democratic-led states but also the chief justices of the nation’s state supreme courts; credentialed, retired Republican judges; the co-founder…
Read More: North Carolina redistricting case before Supreme Court could lead to profound change
