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The Supreme Court heard arguments yesterday in Moore v. Harper, a case challenging a redistricting remedy imposed by the state courts of North Carolina. The actions of the state courts upset a gerrymandered electoral map adopted by the state legislature. A court-directed revision of electoral boundaries for congressional elections substantially altered the outcome in the recent election to the detriment of Republicans. We believe the Court will ultimately rule against the state lawmakers. Given the increasing prevalence of election outcome challenges and rising distrust of rules and procedures governing elections, a decision fully empowering partisan legislatures to enact federal election rules free of state constitutional limits could worsen a politically volatile and polarized climate. The Supreme Court should issue a decision in this case by the end of June 2023. A ruling affirming the North Carolina state court remedy would likely discourage aggressive partisan legislative activity targeting rules for the 2024 federal election. The Basic Constitutional Issue: At yesterday's argument, state lawmakers challenged the authority of the state courts to alter the rules governing federal elections. The U.S. Constitution explicitly authorizes state legislatures to prescribe the rules (time, place, manner) for the election of Senators and Representatives (Article I, Section 4). In three hours of argument, the Court explored whether the Constitution's elections clause forecloses state court decisions that ensure such election rules comport with state constitutional requirements. In challenging the action of the state courts, NC lawmakers and supporting interests contend state legislative power over federal elections rules is exclusive. They recognize that a Governor could veto legislation establishing or modifying federal election rules but suggest the power of the Governor to block such legislation is merely a procedural requirement of the legislative process. The actions of the state courts, however, are "substantive" limits on legislative power. They argue that the NC Supreme Court's enforcement of a state constitutional provision ensuring "free elections" interfered with the legislature's exclusive election rule power under the U.S, Constitution. Unfettered Legislative Power is a Tough Sell: The Justices struggled to find a clear distinction between "procedural" and "substantive" limits on state legislative power over election rules. The notion that the state legislature has independent election rule power beyond state constitutional limits is a tough sell when the state constitution itself establishes and defines the power of the state legislature. Republican officials from the Reagan and Bush Administrations (both of them) filed amicus briefs opposing the lawmakers' independent state legislature theories. Conservative Justices, led by Justice Samuel Alito, questioned whether state courts may unconstitutionally usurp state legislatures when they invalidate election rules based on vague state constitutional provisions. A good portion of today's oral arguments centered on this issue. Despite these concerns, we think a Court majority will reject the "independent state legislature" theories pushed by NC lawmakers in this case. Advocates supporting affirmance of the North Carolina court-imposed redistricting remedy have raised alarms that an adverse outcome could unleash nightmarish scenarios and election year chaos. As argued by one of the amicus filers, a former chief counsel for the Republican National Committee: "Legislatures are inherently political and partisan bodies. That makes them likely both to be tempted to abuse their power to advantage their “team” and to be distrusted by swaths of the public out of fear they may do just that." In the end, we think the Court will hand down a decision that ensures continued state constitutional checks on partisan election rule power, avoiding an outcome that would otherwise intensify political volatility and voter disillusionment heading into the 2024 election cycle. |
