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Does the Constitution Give Election Power Solely to State Legislatures? U.S. Supreme Court to Decide

12-08-2022
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In this April 23, 2021, file photo members of the Supreme Court pose for a group photo at the Supreme Court in Washington. (Erin Schaff/The New York Times via AP, Pool, File)

The U.S. Supreme Court is diving into the debate over the power of judicial review.

North Carolina state lawmakers want sole power when it comes to federal election laws redistricting maps. A process also called gerrymandering. 

The state's Republican-controlled legislature seeks to remove the process of checks and balances based on their interpretation of the Constitution. 

Some experts believe this could be the most important case for American democracy. 

In 2020, an updated census gave North Carolina an additional seat in the U.S. House of Representatives. This also allowed the state legislature a chance to redraw its election map. Multiple lawsuits found the new map was gerrymandered to benefit the Republican Party. 

That's now led to a review from the nation's highest court in the case of North Carolina House Speaker Timothy Moore v. Becky Harper, a Common Cause member against partisan gerrymandering. 

"What it basically says is state legislators and only state legislators have the absolute power to set election-related laws and draw congressional maps," said Mike Sozan, a senior fellow with the Center for American Progress.

Sozan sees Moore's argument to gain this power in the state legislature comes from his interpretation of the Constitution. It's under the election clause founded in a theory known as the "Independent State Legislature Theory." 

"If you had to boil it down, that's exactly what it is," said Sozan. "On the one hand, does legislature mean just the legislators on their own get to act? Or does it also mean, more broadly, the whole law-making process that the legislators have to be a part that includes the governor's signature or veto and a court review, and a constitutional guardrail?"  

Wednesday's argument in the nation's highest court brought concerns from Justice Elena Kagan. 

"This is a theory with a big consequence," Kagan said. "I think what might strike a person is that this is a proposal that gets rid of normal checks and balances." 

Other concerns voiced by Justice Kagan include widespread gerrymandering, restrictions on voting, and removing several voter protections. 

The Heritage Foundation's Senior Legal Fellow Hans Von Spakovsky sides with Moore, and believes the Constitution does give election power solely to state legislatures. 

"I think the North Carolina state legislature is correct here," Spakovsky said. "The state supreme court can't jump in and override their authority." 

Spakosvsky also said, "Progressive liberal groups' are making absurd claims that the court's ruling could end our democracy." 

Sozan seems to think it's possible and is worried it could even manifest into violence. 

"State legislatures are going to be turbo-charged to pass whatever election laws they want," Sozan said. "I'm worried there's going to be gerrymandering that runs amuck in most states. We'll see a lot more election chaos."

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