In a groundbreaking move that could upend future federal elections, the U.S. Supreme Court announced Thursday that it would take up a case out of North Carolina that could potentially give state legislatures nationwide control over their states’ elections. After the court returns from summer break, it will hear Moore v. Harper, a case that emerged out of North Carolina’s latest redistricting cycle. The case saw the state Supreme Court’s Democratic majority reject voting maps drawn by the state’s Republican-led General Assembly.
On March 17, 2022, North Carolina’s GOP lawmakers petitioned the U.S. Supreme Court to get involved and rule that—because of a critical clause in the U.S. Constitution that defines the independent state legislature theory—state courts do not have the power to reject congressional voting maps. Republican lawmakers want to resurrect the map that the state courts struck down. Meanwhile, a court-drawn map is being used for the 2022 midterms.
Just in: In an election case out of North Carolina, SCOTUS agrees to review the "independent state legislature" theory next term. Under that theory, state legislatures have broad power to set rules for federal elections, even if state courts say those rules are unconstitutional.
— SCOTUSblog (@SCOTUSblog) June 30, 2022
The issue has surfaced repeatedly in cases from North Carolina and Pennsylvania, where Democratic majorities on the states’ highest courts have invoked voting protections in their state constitutions to thwart the plans of Republican-dominated legislatures.
On March 7, 2022, ten days prior to the filing of the petition by North Carolina legislative leaders, the U.S. Supreme Court had voted, 6-3, to reject an emergency petition, which could have blocked the current election map from being used for 2022 U.S. House elections.
At the time, Justice Brett Kavanaugh said it was too close to the balloting to force North Carolina to change its districts again. However, he indicated he agreed with dissenting Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito that the Court should address the issue of the state court’s role in managing state legislatures’ decisions about redistricting. It takes “yes” from four of the nine Justices to agree to hear a case, and there is no deadline for them to reach a decision.
Opposing briefs filed on May 20 by the legislature’s critic, left-leaning Common Cause—a group that has challenged the election maps drawn by the Republican-led General Assembly for the past decade—asked the Supreme Court not to take the case. Besides Common Cause, those against the Supreme Court’s review of the case include the League of Conservation Voters, the group “Harper Plaintiffs,” and Democratic N.C. Attorney General Josh Stein’s state Justice Department. Common Cause stated in its brief:
“The way they see it, because the Constitution refers to ‘the Legislature’ of a State setting the time, place, and manner of congressional elections, it precludes state courts from reviewing whether such election-related legislation complies with the state’s own constitution. Instead, Petitioners would have this Court say that a state legislature has carte blanche in this context—unrestrained by state constitutional limitations and unable to incorporate state courts into the process, even if it passes a statute attempting to do so. As a matter of text, structure, history, precedent, and long-established practice in this country, that is flatly wrong.”
BREAKING: The Supreme Court agreed to hear Moore v Harper, an appeal advocating for extreme interpretation of the Constitution that could make it easier for state legislatures to suppress the vote, draw unfair election districts, enable partisan interference in ballot counting.
— Brennan Center (@BrennanCenter) June 30, 2022
Undoubtedly, Thursday’s announcement touched a nerve with those who spent years crafting the “shadow campaign” that plagued the 2020 general election. The frantic mainstream headlines reacting to the news are predictable, with one outlet calling it “the biggest threat to U.S. democracy since January 6.” Deep-state-funded organizations like the Brennan Center for Justice describe the independent state legislature theory and the potential SCOTUS ruling on the case as “the nightmare scenario” which would “radically change our elections” and open the door to throw out the results of presidential elections.
Still, those closely involved in Moore v. Harper indicate they are hoping for a ruling that gives state legislatures the final word on congressional election maps, not a rule to address presidential elector slates. North Carolina Senate President Pro Tem Phil Berger, who is part of the case, said in a statement on Thursday, “I don’t see what we’re asking the Supreme Court to take up as being that broad.” Berger stated that the case was vital to election integrity in North Carolina. Likewise, he said it has implications for the security of elections across the nation. He continued, adding:
“On the heels of another victory at the U.S. Supreme Court, I am confident that this court recognizes what our State Supreme Court failed to recognize— that the United States Constitution explicitly gives the General Assembly authority to draw districts and that authority must be recognized.”
State Republican leaders view the case as a way to prevent the state courts from seizing legislative authority. They argue that the elections clause of the U.S. Constitution is explicit when it says:
“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.”
In asking the U.S. Supreme Court to take up the case on March 17, 2022, lawmakers acknowledged that in “limited circumstances a state legislature’s election rules are subject to review or invalidation by entities other than Congress,” but only if the legislature’s decisions conflict with some other provision of the U.S. Constitution. The Petitioners—who state the issue will not go away until the Court resolves it—argued that is not the case here, writing:
“No such enumerated, federal constitutional right is at issue here. Instead, the state supreme court justified its nullification of the General Assembly’s regulation of the manner of congressional elections by pointing to a hodgepodge of state constitutional provisions.
If a redistricting process more starkly contrary to the U.S. Constitution’s Elections Clause exists, it is hard to imagine it. By its plain text, the Elections Clause creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the legislature’ of each state. It does not leave the states free to limit the legislature’s constitutionally vested power.”
The U.S. Supreme Court announcement shines hope on the future of election integrity and comes off the heels of recent decisions that have the support of many patriotic Americans. Declaring it is time for the Court to decide once and for all if state legislatures are the final authority at the state level for drawing congressional maps, Berger noted that state courts have long ignored the U.S. Constitution and redrawn congressional district maps to suit their political agenda. Echoing the positive potential of the court hearing the case, Jason Snead, Executive Director of Honest Election Project, proclaimed:
“We applaud the Supreme Court’s decision to take this case out of North Carolina, Moore v. Harper. The Constitution plainly empowers legislatures, not courts or executives, to write the rules of our elections. “Dark money” fueled left-wing lawyers have misused the courts to manipulate election laws and undermine commonsense voting safeguards for political gain. In the process, these lawsuits cause chaos and confusion, and damage trust in the election system. The Supreme Court now has the chance to uphold the Constitution, preserve the rule of law, and ensure that future elections have safeguards that make it easier to vote and harder to cheat.”