The Supreme Court is preparing to hear a case next month that could dramatically reshape how federal elections are conducted.
The case to be argued on December 7, Moore v. Harper, would give state legislatures independent power, not subject to state court review, to set many election rules that could be at odds with state constitutions, including the drawing of congressional maps.
The case involves a voting map drawn by the North Carolina Legislature and then rejected by the southern state’s Supreme Court. Republicans seeking to reinstate the legislative map have argued that the state court has no power to act.
The GOP’s argument is based on a section of the Constitution’s Elections Clause which states, “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
According to lawyers for the Brennan Center for Justice, if the Supreme Court of the United States accepts that state legislatures are the only branches of state government to be considered in the matter of elections, countless decisions of state courts and policies of state election administrators could be called into question.
“The laws and practices it would endanger,” the center’s brief state, “range from the right to a secret ballot in many state constitutions to independent redistricting commissions in Arizona and California, from ranked-choice voting in Alaska and Maine to automatic voter registration in Michigan and Nevada, from detailed regulations of voter list maintenance in Indiana and Iowa to voting machine testing procedures in Montana and Ohio.”
The center’s brief said that if the Supreme Court backs the lawsuit, questions about whether those practices and laws can survive would have to be addressed by federal judges. “Only two actors would remain as obvious authorities on the law — state legislatures and federal courts. This new, expansive federal role in monitoring elections would carry high costs to popular perceptions of the legitimacy of both the courts and of election outcomes.”
Benjamin L. Ginsberg, a veteran GOP election lawyer, warned that accepting the independent state legislature theory could “make the amount of litigation exponentially greater. That result will be great for the billable hours of election lawyers. But, it will be bad for everyone else.”
Election law experts issue cautions to SCOTUS
An expert on election law at UCLA, Richard L. Hasen, wrote in a separate brief that justices should be cautious of the speed and volume of litigation that would arrive. “Election litigation in the United States is already at record highs, up nearly 26 percent in the 2020 election period, compared to the 2016 period, and nearly tripling in the period since the disputed 2000 election,” wrote Professor Hasen.
Hasen added that “an expansive interpretation of the Elections Clause surely will fuel much more litigation, placing a heavy burden on federal courts, and especially on this court, as it will be asked to consider an ever-increasing number of time-sensitive, election-related motions on its emergency docket.”
If the SCOTUS adopts the theory of the independent state legislature, Hasen wrote, “the high number of election cases on the emergency docket will surge even further.”
Three years ago, in Rucho v. Common Cause, Chief Justice John Roberts, who wrote for the Supreme Court’s conservative majority, said the federal court system did not have a role to play in adjudicating challenges to redistricting.
Roberts wrote that complaints about partisan gerrymandering and redistricting should be addressed in state courts. “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The states, for example, are actively addressing the issue on a number of fronts.”The Chief Justice seemed to anticipate and then reject the theory of the independent state legislature and wrote that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”