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Supreme Court Should Shut Down Latest Bid to Rewrite Elections Clause

North Carolina’s gerrymanderers are trying to get the justices to buy into the baseless “independent state legislature theory.”

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 origin­al­ismtextu­al­ismfair 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.

First, the case simply does not implic­ate the ISLT’s concern with state consti­tu­tions and state courts infringing on the legis­lature’s supposedly exclus­ive power to regu­late congres­sional elec­tions. The North Caro­lina General Assembly itself enacted the state consti­tu­tional provi­sions that prohibit extreme partisan gerry­man­der­ing, and the general assembly expressly author­ized state courts to remedy unlaw­ful congres­sional maps. In other words, the general assembly imposed judi­cial review on itself. Even under the unortho­dox read­ing of the Consti­tu­tion the legis­lat­ors are offer­ing, there’s no federal consti­tu­tional issue here.

Second, the legis­lat­ors failed to preserve the ISLT issue. The only ques­tion actu­ally presen­ted in the appeal is whether the ISLT some­how forbids a state legis­lature from invit­ing such judi­cial review. The legis­lat­ors did not make this argu­ment in state court or before the Supreme Court. Maybe because it’s clearly ironic — to be gener­ous — to say that the ISLT gives the legis­lature infin­ite power, but not the power to ask its own state’s courts to weigh in. Or perhaps it is because even the few who are sympath­etic to the ISLT recog­nize that the theory does not preclude legis­latures from invit­ing judi­cial review of the rules they make for federal elec­tions. Or maybe because the origin­al­ist evid­ence against such restric­tions is over­whelm­ing. Whatever the reason, the issue is not before the Supreme Court.

Finally, North Caro­lin­a’s legis­lat­ive lead­ers need­lessly waited weeks to file this appeal, and grant­ing their request at this point would create many prob­lems. Less than three months remain until the primary on May 17. The Supreme Court recently held that a Janu­ary 24 federal court ruling block­ing the use of another congres­sional map was too close to that state’s May 24 primary date. Whatever one makes of that ruling (and we do take issue with it), it precludes the Supreme Court from grant­ing a stay here. If 121 days weren’t enough time for the Supreme Court, less than 75 days clearly aren’t. And a ruling for the legis­lat­ors would not only upend North Caro­lin­a’s elec­tions, it could also unsettle the congres­sional maps in numer­ous other states drawn by an entity other than the state legis­lature or in compli­ance with state consti­tu­tional provi­sions.

It’s not surpris­ing that ISLT proponents are bend­ing over back­wards to get the issue before the Supreme Court, which has all but invited these spuri­ous chal­lenges with its stray shadow docket musings on the ISLT. The prac­tical and doctrinal implic­a­tions of endors­ing the ISLT, however, are too radical to accept. They are espe­cially intol­er­able in a shadow docket case without oral argu­ment or full brief­ing. And they are yet even more intol­er­able where the ISLT isn’t even rightly at issue. No matter what North Caro­lin­a’s legis­lat­ive lead­ers might hope or pretend, the ISLT has hit a dead end on its path through their state’s courts. The Supreme Court should let this one rest and seri­ously rethink the chaos it is court­ing.