This election's case out of North Carolina is just huge, exploit it.
It's a case that will test whether state legislatures can seize full control of
election results. At stake is the question of who runs
U.S. elections and who sets election law.
There's a case before the Supreme Court that could radically change how federal
elections are run. It's based on a fringe legal theory that
some headlines warn is a threat to democracy.
Here's what you need to know about more. V Harper.
So Harvard versus Moore is a redistricting case out of North Carolina
in early 2022. North Carolina's highest state court
struck down gerrymandered congressional maps drawn by the state's Republican
legislature. Gerrymandering is when state lawmakers
draw voting districts in a way that disproportionately, though often
legally, favor one political party over another.
The Republican state legislature, led by House Speaker Tim Moore, appealed the
North Carolina Supreme Court's decision, arguing that the court doesn't have the
power to change the maps. Their reasoning?
Something called the independent state legislature theory.
The independent state legislative theory is this idea that is just the state
legislature that gets to decide what the rules are going to be for federal
elections. State legislatures make the laws that
govern our elections, but a state's governor constitution and even its
citizens in the form of referendums can have a say.
These checks and balances are a hallmark of American democracy.
But a ruling in favor of the independent state legislature theory would give
state legislatures, many of them controlled by one party, nearly
unlimited authority to write the laws governing federal elections.
It's not the governor. It's not the state courts.
It's not the state constitution. It's not even voter referendums.
Only the legislature gets to have a hand in setting these voting rules.
Congress and the U.S. Supreme Court would be the only checks,
assuming either body had the votes or the well to do so.
So where did this idea come from? The Supreme Court of the United States
has reversed the decision of the Florida Supreme Court.
Three conservative justices used a version of it to justify stopping the
Florida recount in Bush v. Gore.
The theory stems from a textual reading of two clauses in the Constitution that
empower states to make laws for federal elections.
One is the elections clause, which reads the times, places and manner of holding
elections for senators and representatives shall be prescribed in
each state by the legislature there. The other is the presidential electors
clause. The keyword in both is legislature.
Supporters of the theory say the word should be taken literally.
The legislature and only the legislature has the power to make election laws.
The North Carolina Republicans understanding the word legislature is
inconsistent with with originalism. Vikram Amar is a constitutional law
scholar at the University of Illinois College of Law.
He points to another example in the Constitution to show the framers had a
broader view of the word legislature. The word Congress in the Constitution
does not refer to an institution, namely the House and Senate.
It refers to a lawmaking system. So in the Constitution says Congress has
the power to do X. Congress may do Y.
That means the House, the Senate and the president going through a lawmaking
process as part of a lawmaking system. Over the years, the Supreme Court has
agreed. There are two really important ones
where the Supreme Court has rejected this ISIL theory.
The first involves a 1932 case. The Minnesota state legislature tried to
cut the governor from the redistricting process.
The U.S. Supreme Court rejected that, saying no
legislature means lawmaking system. The court revisited the issue again in
2015. And in that 2015 case, the Supreme Court
said, look, voters can even take redistricting wholly out of the hands of
the legislature and put it with an independent redistricting committee.
The Supreme Court, in an opinion by Ruth Bader Ginsburg, says legislature means
lawmaking system. It doesn't refer to an entity, but that
was then. Today we have a very different Supreme
Court. Four of the court's conservative
justices have already signaled they would be likely to embrace some form of
the independent legislature theory. I think people are thinking, especially
on the heels of last term, when the Supreme Court overturned nearly 50 years
of precedent dealing with abortion and Roe vs.
Wade, that, you know, this is another precedent that could be easily
overturned. So why does this matter?
One concern is giving already gerrymandered state legislatures even
more power over our elections in states like Arizona.
State legislatures could unilaterally kill independent redistricting
commissions approved by the voters, or they could strip state election
officials of their ability to interpret laws during an emergency like a pandemic
to name just a few. And the Supreme Court would find itself
awash in elections cases. Historically decided by state courts.
Then there are concerns about another attempt by rogue legislatures to change
the vote of a presidential election at this time.
But the Supreme Court and the Constitution on their side.
The robust version that people fear is born out of the 2020 presidential
election, where we saw in states that were won by Joe Biden an effort on the
part of legislatures to put forth their own set of electors and nominate former
President Trump, depending on what the Supreme Court were to do in this case,
if it were to embrace the views of the Republican legislature in North
Carolina. It could have dramatic consequences, not
just for congressional elections, but for presidential elections as well.