Supreme Court to decide validity of state legislature theory in Moore v. Harper

The Supreme Court heard oral arguments in a case that could forever shape redistricting and federal elections in America. In Moore v. Harper, the justices are considering the validity of the independent state legislature theory, which states only legislatures have the authority to regulate federal elections and state courts cannot interfere. 

“The elections clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislature’s substantive discretion when performing this federal function,” Attorney David H. Thompson told the justices. Thompson represented North Carolina House Speaker Timothy Moore who was listed as the petitioner in his official capacity. 

But Thompson immediately came under tough questioning from conservative and liberal justices alike. 

“You concede that state legislative action under the elections clause is subject to a governor’s veto. Right?” Chief Justice John Roberts asked Thompson. 

Thompson responded, “Yes, Your Honor.”

“Well, the governor is not part of the legislature. Why do you concede that point?” Roberts said.

Justice Elena Kagan said there are three recent Supreme Court decisions in similar cases that go against Thompson’s argument. 

“In all recent cases, we’ve said, of course, state courts applying state constitutions typically constrain state legislatures, when they redistrict, when they enact election laws,” Justice Kagan said. 

Ultimately, the justices will decide whether state courts can nullify and replace regulations for federal elections put in place by legislatures. It stems from a lawsuit in which the North Carolina State Supreme Court blocked a Republican-drawn congressional map. A trial court then appointed three experts to draw a new map and adopted it. 

The respondents contend there is no such thing as an independent state legislature when it comes to enacting legislation. 

“The blast radius from their theory would sow elections chaos, forcing a confusing two-track system with one set of rules for federal elections, and another for state ones,” Neal Kumar Katyal, the attorney representing Rebecca Harper, said. 

Justice Ketanji Brown Jackson and others honed in on the separation of powers and what exactly constitutes a legislative power. 

“I thought we were able to tell when something is a legislative power, by reference to the state’s constitution. That they tell us when legislative power is being exercised at all, validly or whatever,” Justice Jackson said. 

The decision will be released by the end of June.