A majority of Supreme Court justices seemed wary of state legislators holding the power to set federal voting rules without oversight from state courts as arguments were heard in Moore v. Harper on Wednesday (December 7).
If the justices rule in favor of North Carolina’s Republican legislative leaders, state lawmakers across the nation could exclusively control the structure of federal elections, subject only to intervention by Congress. The GOP legislatures argue that the U.S. Constitution gives that power to lawmakers through the “independent state legislature theory,” "even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions," per the Washington Post.
The ruling in Moore v. Harper could have a major impact on the 2024 election.
Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch, three of the court's most conservative justices, seemed receptive to an interpretation of the Constitution in line with the independent state legislature theory. The court’s liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, seemed to refute the notion, and Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Amy Coney Barrett appeared to be more conflicted.
Republican leaders in North Carolina want the court to restore a redistricting map drawn by the GOP-led legislature but rejected by the state's supreme court. Citing the independent state legislature theory, they say the U.S. Constitution’s election clause gives state legislatures “the federal function of regulating congressional elections” and that states may “not limit the legislature’s discretion.”
Opponents of the theory, which include civil rights organizations, Democratic-led states, and former Republican judges and election lawyers, believe North Carolina’s approach would put hundreds of state constitutional provisions and state court decisions in danger.
Kagan also suggested that the independent state legislature theory could have “big consequences” that get "rid of the normal checks and balances.”
“It seems very much out of keeping with the way our governmental system works and is meant to work,” Kagan said.