State justices tear apart far-right legal theory argued in major US Supreme Court case

08 September 2022

In Moore v. Harper, a case that the U.S. Supreme Court has agreed to hear, North Carolina Republicans are challenging a ruling by the North Carolina Supreme Court — which struck down, as a violation of the state’s constitution, a gerrymandered congressional map that GOP lawmakers in the state favored. But Moore v. Harper is about much more than partisan gerrymandering in North Carolina. It also involves a far-right legal theory known as the “independent state legislature doctrine,” and a group representing the chief justices of every state supreme court in the U.S. is coming out against the theory.

The independent state legislature theory, in its most extreme form, argues that only state legislatures have the power to determine how elections are administered at the state level — not governors, not judges, not state supreme courts, not state attorneys general. According to the doctrine, only a state’s legislative branch has the authority to govern elections in that state — and the state’s executive and judicial branches should have no say in the process.

The U.S. Supreme Court, in the past, has rejected the independent state legislature theory as crackpot nonsense. But given the High Court’s radical-right turn, some legal experts fear that it will rule, in Moore v. Harper, that the theory has merit. And the implications of such a ruling could be enormous.

Proponents of the independent state legislature theory believe that state lawmakers should be able to simply throw out any election results that they don’t like regardless of what a state’s governor, attorney general or state supreme court thinks. So, if the High Court rules that the state legislature theory is legitimate and a Democratic presidential nominee wins in Pennsylvania, Wisconsin and Arizona in 2024, for example, Republican lawmakers in those states could, according to some legal experts who oppose the theory, give the electoral votes to the GOP nominee — regardless of what the states’ executive or judicial branches think.

On August 1, law professor and election law expert Rick Hasen tweeted, “I do believe that a muscular reading of the independent state legislature theory would provide a fig leaf for state legislators to try to reverse presidential election results and overturn the will of the people in a presidential election…. The independent state legislature doctrine is complicated, and the argument is that a state legislature could *claim* the doctrine lets it overturn the will of the people. Kevin McCarthy could agree and the courts might not intervene to stop it during electoral college count.”

The Charlotte News & Observer’s Will Doran, in an article published on September 7, reports, “A group representing the chief justices of every state Supreme Court in the country has come out in opposition to a legal theory North Carolina lawmakers are pushing in a nationally watched case before the U.S. Supreme Court. The case will have massive implications for the 2024 elections, and the future of American elections if the state’s Republican legislators win their argument. Specifically, the lawmakers want the court to embrace a controversial legal argument known as the ‘independent state legislature theory’ that the late conservative Justice Antonin Scalia suggested in the Bush v. Gore case in 2000, but which has never received a majority of support on the nation’s highest court.”

Doran notes that the independent state legislature theory “states that the legislative branch has sole authority to manage elections — at least those at the federal level — and that therefore, state courts should not be allowed to rule a legislature’s election-related actions unconstitutional.”

According to Doran, “The brief from the state supreme court justices opposes that idea, citing the 1803 case of Marbury v. Madison that established the concept of judicial review as part of the American system of checks and balances…. The case now before the Supreme Court stems from when Republican lawmakers drew new political maps for North Carolina, following the 2020 Census, but had those overturned as unconstitutional by the NC Supreme Court. It was the latest in a series of high-profile lawsuits the GOP-led legislature has lost in recent years over their efforts on topics such as redistricting, voter ID, early voting and the political makeup of the state elections board.”

In its brief, the group of state supreme court justices stresses, “Judicial review — review of a legislature’s act for its compliance with other laws and the constitution — preceded the Founding and is embedded in the U.S. Constitution and numerous state constitutions of the Founding era.”

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