The U.S. Supreme Court on Thursday agreed to hear a case next term to potentially bolster the elections power of state legislatures.
The high court announced it would take up the case, known as Moore vs. Harper, brought by North Carolina’s Republican state House speaker who has challenged the state Supreme Court’s decision to dismiss the legislature’s congressional maps that would have given the party an advantage through partisan gerrymandering.
The North Carolina Supreme Court in February ruled that the legislative maps, which gave Republicans as many as 11 safe districts compared to just three for Democrats, violated the state’s constitution in a 4-3 decision.
In March, the U.S. high court turned back efforts by Republicans to nullify new congressional maps approved by state court for this year’s midterm elections.
In the case the Supreme Court will hear in its next term, Republicans have argued that the state Supreme Court had limited authority to overturn the state’s decision on federal election matters under the “independent state legislature” theory.
The theory states that under the constitution’s Elections Clause, which mentions state legislatures but does not explicitly mention the judiciary, giving state legislatures near full authority to set procedures for federal elections while state courts have little or no ability to check that authority.
In a friend of the court brief filed earlier this year, the Republican National Committee and other GOP committees said that “some provisions of the Constitution are subject to reasonable debate” while “others are not.”
“Absent from the constitutionally mandated order of authority is any role for the state judiciary,” the brief stated. “Notwithstanding this omission, certain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government.”
Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — have signaled they are open to at least some version of the theory.
Legal scholars have warned that the Supreme Court ruling in favor of the theory could have consequences on future national elections.
“It would be extremely disruptive,” Carolyn Shapiro, a law professor and founder and co-director of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States told NPR.
“It would allow the possibility that people who don’t like state supreme court rulings that have been on the books potentially for years could step back in and say, ‘Well, actually, that ruling only applies to state elections,'” Shapiro said.
The theory was also used to support former President Donald Trump’s efforts to get states to appoint a slate of alternate electors in the 2020 presidential election.
“It is a really grave danger to American democracy to say that state legislatures are free from state constitutions to do whatever they want,” said Vikram Amar, dean of the University of Illinois College Law.
“State constitutions are an important source of American democracy, limits and rights. And I think it would be terrible if the U.S. Supreme Court distorted federalism to reject that very important premise,” Amar said.
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