A legal expert tells our Y’all-itics podcast that the case has led a strange assortment of bedfellows to band together to take a firm stand against it.
DALLAS — Experts and legal scholars across the country — from conservatives to liberals — stood up and took notice as the US Supreme Court recently ruled out arguments in Moore v. Harper in North Carolina heard and decided to investigate an obscure doctrine known as the Independent State Legislative Theory (ISLT).
If the judges rule in North Carolina’s favor and legitimize the theory, many of the same experts say it would turn hundreds of years of constitutional law on its head and dramatically restructure the relationship between state legislatures and state supreme courts.
“I think the fact that the court accepted this case in the first place … is a pretty aggressive and quite activist move by the court,” said Stephen Vladeck, a professor at the University of Texas School of Law whom Jasons spoke to on this week’s episode of Y ‘all- Itik. “But I think they can walk off the cliff. I actually think this might be the rare example of this court where the judges come to the ledge and look over the cliff and don’t necessarily like what they see.”
Constitutional law expert Vladeck said that while it sounds complicated, confusing and esoteric, everyone should pay attention to this decision, which is expected in June 2023.
Vladeck told us the easiest way to think about the theory is the unprecedented power it would bestow on state legislatures.
The decisions made by these legislatures regarding voting in federal elections and the drawing of lots for federal congressional districts would usurp all other decisions of the rest of the state system of government, even a Supreme Court. If this theory were upheld, even if a state’s Supreme Court ruled that a legislature’s actions violated the state’s constitution, the legislature’s decision would still have supreme priority.
And Vladeck said that’s why he’s moderately obsessed with this case.
“To be clear, they didn’t have to take this case,” Vladeck said. “There was no division between the lower courts. There was no lower court that subscribed to the theory. Therefore, this did not necessarily meet the classic criteria for US Supreme Court intervention. That’s why people like me are sorting it out. When they took this case, alarm bells rang – because it said… in big, bright flashing letters, ‘Actually, we’re interested in this theory.’”
In the case of Moore v. Harper, Republican lawmakers from North Carolina are the petitioners. That state’s Supreme Court overturned a map they drew for redistribution, ruling that the maps violated the state constitution because of partisan manipulation. Angered by the decision, Republicans turned to the US Supreme Court and used the ISLT as a basis to overrule their own Supreme Court. The theory of the independent state legislature was tested and rejected by the US Supreme Court during the aftermath of the 2000 presidential election in the Bush v. Gore case.
“So the concern is not that democracy is somehow at stake because of this decision,” Vladeck said. “It’s that it would empower state legislatures in future presidential elections to act in a way that is openly anti-democratic.”
Proponents of the theory argue that two specific clauses in the U.S. Constitution — Article 1, Section 4 and Article 2, Section 1 — give state legislatures, and state legislatures only, the power to determine “times, places, and kinds ‘ of congressional elections to decide the way states choose presidential elections.
But many lawyers, constitutional scholars and legislators from the right and the left has banded together against the theory.
Several prominent Conservatives have submitted Pleading “Friend of the Court”. against the ISLT, arguing that it would create electoral chaos across the country and essentially invalidate 50 state constitutions.
And in an unprecedented first, the chief justices of all 50 state supreme courts signed a friend of the court letter, urging SCOTUS not to support the theory.
“If Chief Justice Hecht (Texas) and the Chief Justice of California agree, that should tell people something,” Vladeck noted.
Should the US Supreme Court back the theory of independent state legislature, Vladeck says there is a “constitutionally simple” solution — if Congress could put politics behind it. Listen to our latest episode of Y’all-Itics to learn more. Bottom up!
https://www.kvue.com/article/news/politics/yall-itics/yallitics-scotus-moore-v-harper-north-carolina-islt-elections/287-f4f81c76-aee1-47e5-871e-ae15b2ae2bd0 Y’all-itics: The Moore v. SCOTUS’ Harper could lead to chaos