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Why Moore v. Harper is a lollapalooza of a U.S. Supreme Court case

By next summer, the U. S. Supreme Court is likely to hand down a decision that may profoundly impact federal elections. The case, Moore v. Harper, is the biggest federalism case in a long time, maybe ever. One lawyer at oral argument this week described it as a lollapalooza — not the annual Chicago music festival, but an archaic term meaning something “extraordinary or unusual.”

The case involves something called the “independent state legislature theory.” The theory, variously explained, is that a state legislature is free to decide how federal senators and representatives are elected without following its state constitution or being reviewed by its state courts. Historically, state courts have applied state constitutions and reviewed election laws for federal officials just as they would for state officials. Moore will decide whether or how this should change.

In Texas, as in every other state, many laws govern how elections are conducted. How candidates file for office. When elections are held. Whether voters can mail in their ballots. When polls close. The list goes on and on. When people disagree about how the law applies, they can sue to have a court resolve the matter. Sometimes the court need only decide what the words of the relevant statute mean. But sometimes the court may be asked to decide whether an election law violates a state constitutional provision, maybe one that is very broad. In Moore, the North Carolina Supreme Court applied its state’s five-word constitutional provision: “All elections shall be free.” A requirement like that is subject to many interpretations.

In Moore, the high court held that the legislature (called the general assembly) violated the provision because of the way it redrew the state’s 14 Congressional districts, an exercise that is required ever ten years following the census. North Carolina voters appear to be very closely divided between Republicans and Democrats, but the legislature is heavily Republican, and it drew 10 districts favoring Republicans, leaving only 4 favoring Democrats. Critics call this gerrymandering. A deeply divided North Carolina Supreme Court, by a vote of 4–3, eventually ordered that a redistricting plan be redrawn by a panel of three former judges, assisted by experts. They produced a plan that split Congressional districts evenly between Republicans and Democrats, 7 for each. The dissenting justices argued that the majority of the court only said they were following the constitution when in fact they were imposing their own personal preferences.

Majority members of the legislature petitioned the U.S. Supreme Court to reverse the state court’s decision, arguing that it violates the U.S. Constitution, which states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Petitioners argue that by authorizing the state “Legislature” to make election laws rather than the state itself, the framers insulated legislatures from state law — at least state constitutional requirements — and from challenges in state courts. Federal election laws could be reviewed only by Congress and in federal courts.

A state legislature has never been allowed to act in violation of the state’s constitution. And state courts have never been excluded from reviewing the legislature’s actions, particularly under the state’s constitution. This would dramatically impact federalism as it defines the interplay between state and federal courts. For this reason alone, the national Conference of Chief Justices filed an amicus brief — a “friend of court” brief — with the U.S. Supreme Court. I serve as the president of the Conference, which is composed of the chief justices of all the high courts in country. The brief expressed our federalism concerns and warned that because state courts decide dozens of election law cases every election cycle, shifting the cases to the federal courts would be a significant burden.

Moore has political overtones because petitioners — North Carolina legislators — are Republicans, and their opponents in the case are Democrats. Much public commentary has tried to make the legal issue a political one. But leading conservatives, for example, are divided on the independent state legislature theory. And a decision would not always favor one political party or the other. A Democratic legislature could just as well complain of a challenge to its redistricting plan or election law by Republican groups. As Supreme Court Justices pointed out at oral argument: it would just depend on whose ox was being gored.

Moore is so very important because a decision could fundamentally change the way federal representatives are elected, the relationships between state and federal courts, and the way our democracy functions. That’s why CCJ weighed in. A ruling is expected by next June.

Nathan L. Hecht is the 27th chief justice of the Supreme Court of Texas. He has been elected to the court seven times, as a Republican, first in 1988 as a justice, and in 2014 and 2020 as chief justice.

 


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