The case of Moore, Speaker of the North Carolina House of Representatives vs. Harper, to be argued on December 7 poses the question as "whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives ... prescribed ... by the Legislature thereof." The challengers assert that state courts cannot exercise their customary equitable discretion regarding time, place and manner of voting in both state and federal .
Former federal judge and conservative superstar Michael Luttig, writing in The Atlantic discusses the doctrine's flaws and dangerous consequences. The graves stakes of the so-called "independent state Legislature" theory are so great that the Supreme Court's docket is loaded with amicus briefs.
Elections - even for federal office - are conducted by the states. They set their own dates, places, times, and voter qualifications. But when problems arise like problems with reliable mail delivery, or pandemic quarantines state courts and secretaries of state have often made adjustments in dates for mailing, receipt, and counting of ballots to achieve access. As the amicus brief of State Supreme Court judges argues the Elections Clause does not deprive state courts of their own state constitutional power to review state laws - including those which govern state administration of federal elections.
It is helpful to remember that the 1776 Declaration of Independence was a ratification of declarations of self government by then colonies. It was followed by a decade of self-government experience during the period of the Articles of Confederation. Leading scholars of state constitutional law Lawrence Friedman and Robert F. Williams explain in their amicus brief that "the Framers who drafted and proposed the Constitution of 1787—and the founding generation that ratified it— understood the term “Legislature” as used in the Elections Clause to refer to a lawmaking authority created, and bound, by a state’s constitution and laws."
But a couple of years ago a dubious and unprecedented textual interpretation emerged: the U.S. Constitution refers to Legislatures, so state courts and election officials' hands are tied by the date, and methods set by Legislatures are untouchable by judges, governors, or election officials. The Supreme Court's six conservatives have each welcome this notion. Now the entire court will hear a North Carolina cade to root everything in the Legislature at the expense of any othe element of state government.
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