Supreme Court may back out of ruling on doctrine empowering state legislatures to regulate elections

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The U.S. Supreme Court signaled late March 2 that it is considering dropping a high-profile pending case in which Republicans are asking it to rule that state legislatures have greater power over federal elections.

The case, Moore v. Harper, court file 21-1271, is currently being deliberated by the justices after they heard almost three hours of oral arguments on Dec. 7, 2022, which The Epoch Times reported on at the time.

Republican Tim Moore, speaker of the North Carolina House of Representatives, is appealing the Supreme Court of North Carolina’s order redrawing the state’s electoral map against the wishes of the state’s Republican-majority legislature.

Moore’s side 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 interference from state courts.

State Supreme Court to Rehear Case

But on Feb. 3 the Supreme Court of North Carolina decided to rehear the underlying case, a move that could affect the case that is before the U.S. Supreme Court.

In its new unsigned order (pdf), the U.S. Supreme Court directed the litigants and U.S. Solicitor General Elizabeth Prelogar “to file supplemental letter briefs addressing” the effect on its jurisdiction after the North Carolina court granted rehearing in the underlying case “and any subsequent state court proceedings.”

The briefs, not to exceed 10 pages, are due not later than 2 p.m. on March 20, the order states. No justices dissented from the order.

When it was dominated by Democratic judges, the state supreme court blocked a GOP-drawn map of North Carolina’s 14 districts in the U.S. House of Representatives, finding it unlawfully disfavored Democratic Party voters. But the partisan makeup of that court has changed and it is now dominated by Republican judges who could reverse the court’s previous ruling.

Republicans now represent 7 of the districts; Democrats represent the other 7 districts.

Independent State Legislature Doctrine

Commentators have been speculating for months that the justices would find a way to avoid ruling on 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.

One liberal law professor has called the doctrine the “800-pound gorilla” of election law because of its potentially disruptive effect on election administration norms.

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.

A Tough Case

Election law expert J. Christian Adams, president of the Public Interest Legal Foundation (PILF), said the high court may indeed be looking for a way to avoid ruling on the controversial appeal.

The new order is “a signal it might happen,” Adams told The Epoch Times by email.

“Courts regularly look for reasons not to decide a tough case. If the State Supreme Court resolved the issue on a state level, then the SCOTUS [i.e. U.S. Supreme Court] won’t want to take the case. They have limited jurisdiction to live real cases or controversies,” Adams said.

PILF describes itself as “the nation’s only public interest law firm dedicated wholly to election integrity.” The nonprofit organization “exists to assist states and others to aid the cause of election integrity, and fight against lawlessness in American elections.”

PILF filed a friend-of-the-court brief (pdf) in September 2022 in Moore v. Harper supporting Moore’s position.

‘Ordered Liberty’

The petitioners’ position “is consistent with the allocation of power in the Constitution.”

“The Framers sought to protect ordered liberty by vesting state legislatures as the primary reservoir of power over elections. The Framers rejected placing powers over elections ‘wholly in the national legislature, or wholly in the State legislatures’ and instead allocated power ‘primarily in the latter and ultimately in the former,’” the brief states, quoting Alexander Hamilton in Federalist 59.

“The state legislature is the body closest and most responsive to the people, and thereby the most likely to preserve the liberties of the people. This explicit allocation of power to state legislatures preserves ordered liberty,” the brief states.

Veteran Supreme Court observer Curt Levey, president of the conservative Committee for Justice, also said the new order suggests the U.S. Supreme Court is looking for a way out.

“The question the Court asked for briefing on is an important and interesting jurisdictional question,” Levey said in a text message to The Epoch Times.

“Nonetheless, one wonders how much the question was also motivated by the justices’ possible post-argument hesitancy to decide the case on the merits, especially since the Court rather than either party raised the question.”

The Epoch Times reached out to attorneys for both sides in the case and the U.S. Department of Justice after the order was issued but did not receive an immediate reply from them.

This article by Matthew Vadum appeared March 3, 2023, in The Epoch Times.

Photo: Official portrait of Tim Moore, Speaker of the North Carolina House of Representatives