The U.S. Supreme Court announced on Thursday that it will hear a case next year that could change election laws in the country. This may include a fringe theory that states have more power over presidential and congressional elections.
Moore v. Harper is the case. It centers on new maps of North Carolina’s voting districts for the 14 U.S. House of Representatives seats.
Republican state legislators want to revive a map North Carolina’s courts have rejected. They found that the GOP-controlled legislature had violated several provisions of the state constitution, giving Republican candidates an unfair advantage by partisan gerrymandering. Instead, a court-drawn map was created for the 2012 midterm elections.
The Republican legislators argue, however, that the U.S. Constitution’s Elections Clause grants state legislatures the power of determining how congressional elections are conducted, without any checks or balances from state constitutions and state courts.
They argue that North Carolina’s state courts have thrown out and replaced the map drawn by the legislature based on an independent theory of the state legislature. This argument is radically different from the U.S. Supreme Court history of deferring state courts regarding how state constitutions should be interpreted.
In March, the high court declined to hear an emergency request in this case. However, in a dissenting opinion three of the court’s conservatives aEUR” Justices Samuel Alito and Neil Gorsuch signaled that they would likely support the Republican lawmakers’ acceptance of this theory.
However, many legal scholars have raised concerns that the endorsement of this theory by the high court could have serious consequences for the country’s congressional and presidential elections.
Carolyn Shapiro is a Chicago-Kent College of Law professor and codirector of the Institute on the Supreme Court of the United States. It would be possible for people to say that state supreme court rulings that have been in place for years, and not their own, could be reversed. ”
Shapiro says that this theory could make it difficult to hold elections at different levels of government simultaneously, as officials would need to prepare for various sets of ballots, voter registration system, and in some cases voter ID laws.
Vikram Amar is the dean of University of Illinois College of Law. He notes that a hyper-charged version of the theory pointing at the Electors Clause of U.S. Constitution was used as the background for the “fake electoral” scheme that is the focus of the House select panel investigating the Jan. 6 attack against the U.S. Capitol.
Amar believes that the Supreme Court’s ruling in North Carolina’s redistricting case could have an impact on the 2024 presidential election. States with Republican-controlled legislatures could see it as an invitation to set new election rules that take power away from voters when picking electors for the Electoral College or to make state lawmakers, not courts, the judges in disputes after the election. Amar says that it is a serious threat to American democracy to claim that state legislatures can do what they want under their state constitutions. He co-wrote an article about the Supreme Court Review at Chicago on how this theory contradicts an originalist understanding of U.S. Constitution. “State constitutions are an essential source of American democracy and limits, rights, and freedoms. It would be horrible if the U.S. Supreme Court disregarded federalism in order to reject this very important premise.
Shapiro, a Chicago-Kent College of Law professor says that the theory “doesn’t make any sense whatsoever.”
“Constitutions create the legislatures. They are given specific powers by their constitutions. State constitutions define how these powers interact with other branches state government. State constitutions define the limits on these powers,” Shapiro says. He is the author of an article about the theory’s origins, implications, and future plans for The University of Chicago Law Review. “The notion that there is a separate legislative power from ordinary constitutional limitations is quite extraordinary and unconstitutional.
