On Wednesday, the Supreme Court heard arguments in the case of Moore v Harper.
State legislatures have total authority over how elections for senators and representatives are conducted. State legislatures also have the authority to appoint electors. Both of these provisions are detailed in the Constitution.
Yet, in North Carolina, a court took authority away from legislators after the court determined the map drawn by state reps was too partisan. That court drew its own map—and implemented it. The disenfranchised legislators, led by Timothy Moore, have brought the case to the court.
Specifically at issue in Moore v Harper is whether or not the Republican-controlled legislature in North Carolina in 2021 had the authority to redraw electoral maps that would have restructured districts to lean more heavily Republican.
North Carolina's highest court ruled in February 2022 that the legislature could not redraw the map as they had, stating that "the new map was an 'egregious and intentional; partisan gerrymander, 'designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others,'" reports SCOTUS blog.
The court, having determined that the legislature acted inappropriately, then appointed their own "experts" who drew a new electoral map, which was then used. The GOP in North Carolina asked the Supreme Court to disallow the court-drawn map and reinstate the one the legislature had drawn. The court refused, but then took up the case in June. In the interim, the court-drawn map has been in use, which earned the state a split of congressional seats, with 7 GOP and 7 Democrats taking seats.
In hearing arguments on Wednesday, Justice Sonia Sotomayor asked attorneys for Harper how anything could get in the way of the constitutional clauses allowing control of elections, even if states determined that they wanted to make other laws, those laws would be overruled by the Constitution.
In response, attorneys for Harper brought up historical changes to state election law, causing Sotomayor to reply "Yes, if you rewrite history, it's very easy to do."
The central issue at hand is if state regulations on elections can override the Constitutional right of state legislatures to create state election laws.
While Jackson leaned into arguments that state courts should have some authority over state election laws if that is so designated by a state constitution, attorney's for Moore stated that federal law supersedes state law in where authority is given for state elections.
Attorneys for Harper said that safeguards are needed to prevent abuse of state legislatures to act in a partisan way.
The Constitutional clause at issue in the case are as follows:
Article II Executive Branch: Section 1 Function and Selection: Clause 2 Electors: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."
Article I Legislative Branch: Section 4 Congress: Clause 1 Elections Clause: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
While questioning lawyers for Harper, Justice Clarence Thomas asked that if the state legislature made a redistricting map that was "very, very generous to minority voters," and the state’s Supreme Court said that it violates their constitution, "would you be making the same argument?"
After the lawyer said yes, Thomas added, "as Justice Gorsuch said, it seems as though it depends on whose ox is being gored, so I’m changing which ox is being gored."
The attorney said that nothing would change in terms of substance, adding "my point to you, Justice Thomas, is that this court has never second-guessed state court interpretations of their own constitution. And so if there’s a general clause and it happens to benefit or hurt voters, as Judge Sutton says that’s a process the states deal with, and as I was saying to Justice Alito, there’s a special safeguard here, which is the second half of the elections clause, which allows Congress to supplant whatever that errant states or your decision is."
"I’d like you to just tell me what is the source of the authority for the state of North Carolina Supreme Court to be involved in a federal election?" Thomas questioned. "I understand that there's no disagreement about a state legislator. But this is a federal election, and it's similar to the problem we had with the presidential election in Bush v. Gore."
Bush v Gore was the case regarding the 2000 election that halted the recount in Florida. According to SCOTUSblog, "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."
The attorney said that this was "the exact same thing," and that "the North Carolina Court is interpreting the elections, causes, and powers, and the question is whether or not they have misread it or not."
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