Moore v. Harper involves a bizarre legal gambit known as the independent state legislature theory. It argues that the Elections Clause of the U.S. Constitution provides state legislatures the sole authority to set the “time, place, and manner” of federal elections.
Its adoption would place legislatures outside of the purview of state constitutions, effectively ending state court judicial review of election laws or congressional district maps.
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The case comes before the court following more than a decade of attempts by North Carolina Republicans to draw hyper-partisan congressional maps following the decennial census in both 2010 and 2020.
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The [independent state legislature ] theory arose in the controversial 2000 Bush v. Gore case when then-Chief Justice William Rehnquist endorsed it in a concurrence joined by then-Justice Antonin Scalia and current Justice Clarence Thomas. It reemerged in force in the fall of 2020 when Republicans in North Carolina, Pennsylvania and Wisconsin used it to argue for the Supreme Court to block election law changes adopted during the COVID-19 pandemic. The court declined to do so, but Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Thomas all showed an interest in either accepting the theory or hearing a case on it. North Carolina’s challenge presented that opportunity and these four justices took up the case, even though the North Carolina legislature specifically authorized the state supreme court to adjudicate gerrymandering disputes in exactly the manner they now wish to invalidate.
Ha! The Bitemaster heartily supports North Carolina in this case. If the Supreme Court agrees, states like New York would be able to produce congressional maps that more fairly represent the feelings of its citizens and award all the state’s 26 congressional seats to deserving Democrats. It would be a great victory, indeed.