Thirteen right-wing state attorneys general, many hailing from states that were part of the Confederacy, have signed on in support of a lawsuit set to be heard before the Supreme Court that would give state legislators free rein to draw congressional district boundaries over the objection of state courts. It could open the door for states to essentially defy voters and assign electoral votes to whichever presidential candidate they want.
The case, Moore v. Harper, stems from a suit filed by North Carolina Republicans, who argue the state Supreme Court has no right to apply the state constitution to bar them from authorizing extremely gerrymandered maps. That claim to lawmakers' supremacy rests on an antidemocratic theory known as the independent state legislature theory.
Republican attorneys general from Alabama, Arizona, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas and Utah filed an amicus brief Tuesday, detailing why they believe state courts are powerless to stop legislators from federal election meddling that runs afoul of the state constitution.
Several of those states that have signed on — such as Mississippi, Texas and Louisiana — are increasingly diverse states with large Black populations, and they have a brutal legacy of voter disenfranchisement that spans back to the Redemption Era that followed the Civil War.
This power grab is part of that tradition.
Taken to its logical end, the plaintiffs’ argument effectively means that North Carolina Republicans, who gerrymandered themselves into the state House majority, can pass any number of laws that restrict the right to vote while bypassing state laws, state constitutions, state courts and other checks on their power. And with that power, legislators could seemingly devise ways to keep themselves in the congressional majority indefinitely with virtually no one to stop them.
But in their brief, the state AGs claimed the Constitution’s federal election clause gives state lawmakers carte blanche because it states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
Notably, it doesn’t say anything about that power being unimpeachable or held by state legislatures exclusively, in all circumstances.
But the AGs kept at it in their brief Tuesday.
“The threats to state interests are clear in this case,” they wrote. “If state courts are allowed to override legislative decisions based on vague state constitutional provisions, then the delegation from the federal Elections Clause is transformed from its text and intent. This undermines the rule of law.”
“Vague constitutional provisions,” for the unaware, is just a long-winded way of saying “state constitution.” Republicans clearly don’t want to be constrained by those pesky state constitutions, with their laws and protections and such.
That said, the Republican AGs, and the North Carolina legislators who filed the case, have gotten some pretty forceful pushback. In a separate brief filed Tuesday, lawyers for an organization representing all 50 state Supreme Court chief justices disputed claims that the elections clause bars state courts from reviewing election laws under state constitutions.
“The Elections Clause does not derogate from state courts’ authority to decide what state election law is, including whether it comports with state and U.S. Constitutions,” lawyers for the Conference of Chief Justices wrote.
The Supreme Court is slated to hear arguments in the case in the upcoming session, which is set to begin in October. If the conservative-leaning court sides with Republicans in North Carolina, they’ll be laying the groundwork for a sharp turn away from democratic politics.