In oral arguments over Moore v. Harper expected this fall, justices will contemplate the values of a North Carolina Supreme Court decision that decided that the state constitution prevented lawmakers from extreme partisan gerrymanders and ordered the districts to be redrawn. The case comes not long after a 5-4 Supreme Court ruling in 2019, Rucho v. Common Cause, thwarted federal courts from deciding whether partisan gerrymandering violates the U.S. Constitution. However, it argued state courts can decide whether they violate state constitutions.
Suppose the high court were to vote in favor of North Carolina. In that case, the decision could abolish all oversight of elections by state courts essentially and give legislatures free control to change voting rules and districts ahead of elections.
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A leading Democratic election lawyer who worked as Hillary Clinton's general counsel, Marc Elias, has played a critical role in previous lower court litigation, challenging measures enacted by Republican state legislatures that he decries as "new voter suppression laws to combat fraud that does not exist," according to Elias's July 6 op-ed for Democracy Docket.
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Conversely, Republican lawmakers have backed the laws as election security standards that make it easier to vote but hard to fool, such as laws existing in eight states, including Georgia, requiring voter identification to cast a ballot.
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A core element of Moore often encouraged by conservatives is a lesser-known theory called the "independent state legislature doctrine," which suggests that under the Constitution's election clause, only the legislature has the authority to hold federal elections without interference from state courts.
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The theory has been denied numerous times by the Supreme Court over the years, though the formation of the 6-3 Republican majority in 2020 has led legal scholars to speculate whether the current slate of conservative justices would be ready to utilize it.
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The doctrine is based on a strict interpretation of the Constitution’s elections clause, which says: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."
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"In its strongest form, it would exclude a governor’s ability to veto an election bill. In the case of North Carolina, Republicans are arguing that it excludes meaningful judicial review by a state court interpreting its own constitution," Elias wrote.
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