WASHINGTON—Conservatives have long sought a conclusive legal decision that would define and cap the capacity of courts to issue rulings affecting how state legislatures administer elections.
North Carolina House Speaker Rep. Timothy Moore (R-Cleveland) believes that day will finally come next spring when the U.S. Supreme Court issues its decision in Moore v. Harper.
As he stood on the Supreme Court steps in a gray drizzle on Dec. 7, even a nearby brass band blaring Christmas tunes could not drown out his upbeat confidence that the court will place guardrails on “judicial activism” when deliberating challenges to state election laws.
Unlike state legislators, Moore said the state’s Supreme Court justices “got elected by nobody” and, therefore, unlike state legislators, are not accountable to ensure “the will of the people” is implemented.
So, when the state’s Supreme Court in 2021 disqualified the North Carolina General Assembly post 2020-Census congressional map as a “partisan gerrymander” prohibited under the state’s constitution, lawmakers with Moore as lead petitioner successfully appealed to the U.S. Supreme Court for a hearing.
They argue the Election Clause in the U.S. Constitution—Article 1, Section 4, Clause 1—gives state legislatures complete power in orchestrating elections within their states. Under this interpretation of the Constitution, called the Independent State Legislature doctrine, state courts cannot intervene in legislature’s redistricting process, they argue.
“It appears the court is very serious about weighing the arguments” presented by the North Carolina General Assembly during nearly three-hour oral arguments, Moore said.
The hearing, which doubled the allotted 90 minutes, was the first before the U.S. Supreme Court debating the validity of the Independent State Legislature doctrine.
Although widely rebuked by a host a bipartisan legal scholars—of 69 briefs filed in the case, only 16 support it—Moore said Independent State Legislature theory was debated more than 230 years ago in adopting the Articles of Confederation and U.S. Constitution.
“There’s nothing new about the Articles of Confederation and the Election Clause in the U.S. Constitution,” he said. “What has changed is the activist nature of the courts” with justices essentially co-opting the role of lawmakers to “make up something new” rather than follow the Constitution.
