The Supreme Court today
just agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion.
The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution, Article I, Section 4 as to congressional elections and Article II as to presidential elections give state “legislatures” the power to set certain rules (in the Art. I, section 4 context, subject to congressional override). The Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. See
Smiley v. Holm. As recently as 2015, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. See
Arizona Independent Redistricting Commission v. Arizona Legislature.
But that latter case was 5-4 with a strong dissent by Chief Justice Roberts, who believed the legislature could not be cut out of the process. Most of the Justices in the majority in that case are now off the Court. There’s a more radical version of the idea that the Legislature has power, standing on its own as a body and not part of the general structure of state government, in the independent state legislature theory...
