A U.S. Supreme Court case that could recognize state legislatures’ power to regulate federal elections without interference from state courts will continue even though a recent action by the high court suggests it may drop the case, the top lawyer for Republicans who brought the case said in a prediction to The Epoch Times.
Republican Tim Moore, speaker of the North Carolina House of Representatives, is asking the high court to recognize that state legislatures have preeminent authority under the U.S. Constitution to make the rules for presidential and congressional elections without state courts getting involved in the process.
The Elections Clause in Article I of the U.S. Constitution states in part: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof[.]”
At issue is the once-obscure independent state legislature doctrine, under which Republicans argue that the Constitution has always directly authorized state legislatures alone to make rules for the conduct of federal elections in their respective states.
Democrats say this doctrine is a fringe conservative legal theory that could endanger voting rights, green-light partisan gerrymandering in the redistricting process, and cause upheaval in the electoral process. Conservatives, on the other hand, say the doctrine is derived from the plain text of the Constitution and would restore reasonable rules on the electoral playing field and allow elected state officials, instead of judges, to make election rules.
The case, Moore v. Harper, is currently being deliberated by the justices after a marathon oral argument session on Dec. 7, 2022, which The Epoch Times reported on at the time.
Moore is appealing an order by the then-Democratic-dominated Supreme Court of North Carolina redrawing the state’s electoral map against the wishes of the state’s Republican-majority legislature.
The state court found the map unlawfully disfavored Democratic Party voters. Republicans now represent seven of the state’s U.S. House districts; Democrats represent the other seven districts.
But while the justices were deliberating the case, on Feb. 3 the Supreme Court of North Carolina, which now has a Republican majority, decided to rehear the underlying case, a move that could affect the case that is before the U.S. Supreme Court. The Supreme Court of North Carolina will re-hear the case, known in that court as Harper v. Hall, on March 14.
This prompted the U.S. Supreme Court to signal on March 2 that it is considering dropping the case. It directed the litigants to file supplemental briefs by March 20 addressing whether it still has jurisdiction to decide the lawsuit.
In an email exchange with The Epoch Times, the lead attorney for the North Carolina Republicans, David H. Thompson of Cooper and Kirk, told The Epoch Times he believes the case will proceed to completion.
“We are confident the United States Supreme Court continues to retain jurisdiction in this important case,” Thompson said.
When asked, Thompson said he believed that the high court would decline to declare the case moot and avoid issuing an opinion on the merits of the case.
“Yes, we are confident the case is not moot,” he said.
Attorney Ed Hartman of Annapolis, Maryland, represented unsuccessful Maryland gubernatorial candidate Dan Cox, a Republican, in a recent similar case.
Hartman acted in a challenge to a state court order he argued unconstitutionally interfered with the Maryland legislature’s powers by allowing the early counting of mail ballots in the November 2022 elections. The U.S. Supreme Court rejected Cox’s petition for a hearing on Feb. 21 in an unsigned order without providing reasons why it would not take the case, The Epoch Times reported.
The U.S. Supreme Court could still decide to proceed with Moore v. Harper regardless of how the North Carolina court rules, Hartman told The Epoch Times in a recent interview before Thompson issued his prediction.
The high court could say, “‘well, it doesn’t matter anymore because that election concluded and we’re not going to redo it,’ but, of course, the same question will come up every two years,” he said.
“I can see this issue coming up again, whether it be in North Carolina or any other state because it is the very same issue that happened here in Maryland, which is that the judiciary decided on how the elections should be held, whether it’s through approving their own redistricting map, or in our case, suspending election rules on how and when to count absentee ballots.”
“And that’s just not the courts’ role,” Hartman said.
Attorneys for the other side in the Moore v. Harper case and the U.S. Department of Justice failed to respond to requests by The Epoch Times for comment.
This article by Matthew Vadum appeared March 9, 2023, in The Epoch Times.