The Supreme Court on Thursday agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion in congressional and presidential elections.
The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution—Article I, Section 4 as to congressional elections and Article II as to presidential elections—give state “legislatures” the power to set certain rules (in the Article I, Section 4 context, subject to congressional override). In cases such as Smiley v. Holm, the Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. As recently as 2015, in Arizona Independent Redistricting Commission v. Arizona Legislature, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. The majority saw voters passing legislation via initiative as part of that legislative process.
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