Independent Legislative Theory before the Supreme Court

The Supreme Court will decide this Spring in the case Moore v. Harper (21-1271) from North Carolina that could change the way federal elections are conducted in the United States dramatically. The question in the case is, can the legislature of a state dictate the rules and laws for voting in federal election without review from the courts or the executive branch of the state? Even if the rules and laws are partisan and unconstitutional as it applies to the state constitution, as is the situation in this case.

The North Carolina Republican Party is using the theory of the Independent State Legislature as a defense for drawing openly stated partisan federal districts. If successful, it would give the legislature of each state the sole responsibility to set guidelines and laws that regulate federal elections.

The theory suggests that state legislatures have this sole responsibility because of wording of Article 1 Section 4 Clause 1 of the constitution. It states in part, "times, places and manner of holding elections" for congress "shall be prescribed in each state by the legislature thereof"

This authority would only be subject to intervention by the U.S. Congress. This includes overtly partisan maps outlining federal election districts.

The theory suggests that it is only the legislature of the state that has this authority and responsibility because the Constitution only uses the word "legislature" and not the word "states" like it does other places in the Constitution.

Simply stated, the authority of the courts and the executive branch at the state level have no voice or authority to challenge the outcome of legislature's decision.

Arguments against the Independent Legislature Theory.

Under this theory, the state courts cannot issue an opinion that the laws enacted by the legislature for federal elections are unconstitutional with respect to the state constitution. Only the federal courts or the Supreme can make such a ruling. This removes authority from the citizens of the state to conduct their own elections.

It has been a practice in the United States that federal courts stay out of matters that are state issues. By supporting the Independent Legislative Theory, the Supreme Court would move against historical comity between state and federal courts.

The very basis of the Constitution and the authors is that the government has authority split into three branches. It is absurd to think that the authors would abandon the very basis of the constitution in this single situation.

The Legislature of states does not exist in a vacuum separate from the executive and judicial branch, or even the state’s constitution.

Article 1 of the constitution does not state that the legislature is to operate independent of the other branches in their states. It means that the legislature is to set the federal election rules with advice and consent from the other branches of the government.

The authors of the Constitution may have used the word legislature instead of state because they did not want the governor or the courts to act independently from the other branches of the state government to dictate the federal election districts. So why would the authors of the constitution want the legislature to act independently?

The Supreme Court should not support the Independent Legislative Theory, leaving state legislatures to craft laws about federal elections that are both approved by the courts and authorized by the governor of the state. This would maintain the balance of power instilled in the framework of the constitution.

If the Supreme Court does support the Independent Legislature Theory then congress as authorized by the constitution should establish a framework of laws guiding federal elections in each state. (As is admitted by those that are arguing for the support of the Independent Legislature Theory.)

Sources

Scotus Blog

https://www.scotusblog.com/case-files/cases/moore-v-harper-2/

Florida State University

https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1615&context=lr

Justia

https://law.justia.com/constitution/us/article-3/39-conflicts-of-jurisdiction-rules-of-accommodation.html?utm_source=pocket_saves

https://supreme.justia.com/cases/federal/us/588/18-422/?utm_source=pocket_saves

Balls and Strikes

https://ballsandstrikes.org/law-politics/a-brief-guide-to-independent-state-legislature-theory-the-rights-next-big-attack-on-democracy-itself/?utm_source=pocket_saves

Bipartisan Policy Center

https://bipartisanpolicy.org/report/independent-state-legislature-theory/?utm_source=pocket_saves