Supreme Court Should Shut Down Latest Bid to Rewrite Elections Clause (Brennan Center)

[Nevilledog]

Link to tweet

https://www.brennancenter.org/our-work/analysis-opinion/supreme-court-should-shut-down-latest-bid-rewrite-elections-clause#.YiFyNl0xwU8.twitter

In Febru­ary, North Caro­lina state courts redrew the general assembly’s congres­sional map, which viol­ated the state’s consti­tu­tional ban on partisan gerry­man­der­ing. Now, several of the state’s Repub­lican legis­lat­ive lead­ers are fever­ishly press­ing the U.S. Supreme Court to rein­sti­tute the original maps for the upcom­ing primary elec­tions.

Moore v. Harper is currently on the Court’s “shadow docket, ” which is increas­ingly being used to bypass normal court processes. In the case, the legis­lat­ors propose a radical rein­ter­pret­a­tion of the Consti­tu­tion known as the Inde­pend­ent State Legis­lature Theory (ISLT), which has been making the rounds in conser­vat­ive legal circles. The theory is base­less. But more import­antly at this moment, the justices would be hard-pressed to find a worse vehicle than Moore to address the ISLT.

The ISLT is based on an implaus­ible read­ing of the U.S. Consti­tu­tion’s Elec­tions Clause, which directs states to make rules for congres­sional elec­tions but also gives Congress over­rid­ing power to make entirely new elec­tion rules or alter state laws. Under this fringe theory, state legis­latures are the only state body that can regu­late congres­sional elec­tions — not governors, state judges, or even state consti­tu­tions.

The ISLT is merit­less as a matter of origin­al­ism, textu­al­ism, fair repres­ent­a­tion, and preced­ent. (One of many import­ant data points to keep in mind: an unbroken line of Supreme Court cases dating back more than 100 years has rejec­ted the theory.) But stray concur­ring opin­ions from the shadow docket around the 2020 elec­tion have emboldened ISLT proponents to force the issue on the Court, as the North Caro­lina legis­lat­ors are trying to do here. Never­the­less — and notwith­stand­ing some dramatic media cover­age — Moore does not present the Court with an oppor­tun­ity to install the ISLT. There are many reas­ons why. Let’s spot­light a few.

*snip*