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The discredited “independent state legislature theory” is being heard by the
Supreme Court in the case of Moore v. Harper, which may have potentially disastrous consequences for the right to vote in the elections in the United States.
The United States Supreme Court The United States heard oral arguments Wednesday in a case over the authority of state courts to limit partisan electoral mapping.
The case Harper vs. Moore is referring to the electoral map that the Republican-majority state Congress of North Carolina drew after the publication of the new census in 2020, and which the state Supreme Court found so pro-conservative that it ran counter to constitutional voting rights protections.
In this case, the Supreme Court is asked to rule that the United States Constitution The United States gives state legislatures exclusive power over electoral and redistricting rules , without any checks or balances from state constitutions, state courts, governors, or voters using ballot measures.
A decision that recognizes the “state legislature theory independent” would be a fundamental change in the way federal elections are conducted , ot granting state legislatures sole authority to set the rules of contests, even if their actions violated state constitutions and resulted in extreme partisan rigging for more seats in Congress.
In the case of the North Carolina electoral map, the Department of Justice of that state decided to order the drawing of a new map by an independent expert and this is, according to the Congress of North Carolina, an usurpation of the functions of the legislators.
“It would be an act of a legislative nature for a court to make this determination” of deciding which electoral design is too partisan, argued the attorney representing the North Carolina Congress, David Thompson .
According to his thesis, supported by a particular reading of the Constitution that has gained recent supporters Ently among supporters of former President Donald Trump (776-2022), the state legislatures have practically absolute authority in electoral matters, a power that neither the courts nor the state Constitution can diminish.
This theory, however, has never been accepted by the Supreme Court in previous similar cases, something that attorney Neal Katyal, representing opponents – including civil rights organizations, Democratic and Republican officials, and election lawyers – emphasized during his arguments.
Hearing in the Supreme Court
Thompson’s arguments ran into Wednesday’s hearing with clearly opposed by the three progressive Supreme Court Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson, and Thompson faced difficult questions from the chief justice, conservative John Roberts, and two justices nominated by Donald Trump, Brett Kavanaugh and Amy Coney Barrett.
“It is the state Constitution that gives Congress its power,” declared Justice Brown Jackson, arguing that it would not make sense that this same parliament could make decisions that invalidated the state Constitution.
“This is a proposal that removes the normal checks and balances on the way big government decisions are made in this country. You would think it gets rid of all those checks and balances at exactly the moment they are most needed,” Judge Elena Kagan said, according to the Brennan Justice Center.
Justice Kagan on checks & balances:
“This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. You might think it gets rid of all those checks and balances at exactly the time when they are needed most.”
— Brennan Center ( @BrennanCenter) December 7, 2021
At least three conservative judges –Samuel Alito, Clarence Thomas and Neil Gorsuch– already showed themselves last March in favor of accepting the thesis of North Carolina legislators, so it is expected that the final decision will depend on the position adopted by Roberts, Kavanaugh and Barrett.
Of these, Kavanaugh was inclined to accept the thesis that the US Constitution limits the power of state justice to intervene in electoral processes, but implied that North Carolina legislators were taking their argument too far.
The provision under discussion, the Elections Clause , was included in the United States Constitution by James Madison, precisely because the founders of the nation did not trust state legislatures, thinking that they would be captured by “factions” and that they would manipulate and participate in vote suppression.
This is the key issue, since fully accepting the thesis of the Republican Congress would establish a precedent that, according to many analysts, could allow manipulation of the electoral result such as the one that Trump and his allies tried to promote after the presidential election of 2021.
So when Trump tried to cast doubt on the electoral process to try to stop the inauguration of his opponent, Joe Biden, his lawyer John Eastman used an argument similar to that of North Carolina legislators to justify the possibility that the states refused to certify victory, under the false pretext that the vote was fraudulent.
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