by Amy Howe at SCOTUS Blog
The Supreme Court will hear oral argument on Wednesday in a case that UCLA law professor Richard Hasen has called the “800-pound gorilla” of election law. The case, Moore v. Harper, is a test of the “independent state legislature” theory – the idea that the Constitution gives state legislatures nearly unfettered authority to regulate federal elections, with little to no interference from state courts. Depending on whether the justices agree with the theory and how broadly they interpret it, it has the potential to upend federal elections by eliminating virtually all oversight of those elections by state courts.
The independent state legislature theory rests on two provisions of the Constitution. The provision directly at issue in Moore, Article I’s elections clause, says that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Similarly, Article II’s electors clause says that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.” Proponents of the theory argue that, under the plain text of those two clauses, state courts are not authorized to supervise how state legislatures run elections for Congress or the president. Critics argue that neither clause was ever understood – including at the time of the Founding — to confer such unchecked authority on state legislatures.
The Supreme Court has never endorsed the independent state legislature theory in a majority opinion. But the theory made an appearance in a concurring opinion by then-Chief Justice William Rehnquist in Bush v. Gore, the case that halted the recount in Florida in the 2000 presidential election. In an opinion joined by Justices Antonin Scalia and Clarence Thomas, Rehnquist set out his view that the state court’s recount conflicted with the deadlines set by the state legislature and thus violated the legislature’s authority under the Article II electors clause.
And in 2020, the Supreme Court turned down a request by Pennsylvania Republicans to fast-track their challenge to a ruling by the Pennsylvania Supreme Court that, relying on the state constitution, extended the deadline for absentee ballots in the general election. In an opinion that accompanied the court’s order, Justice Samuel Alito (joined by Thomas and Justice Neil Gorsuch) suggested that the state supreme court’s decision to extend the deadline for counting ballots likely violated the Article I elections clause.
Moore began as a challenge in state court to a new congressional map adopted by…
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