SCOTUS to Hear Case That Could Give State Legislatures, Not Judges, Power to Regulate Elections
SCOTUS to Hear Case That Could Give State Legislatures, Not Judges, Power to Regulate Elections

By Matthew Vadum

The Supreme Court decided on June 30 to hear an important new case that Republicans hope will re-empower state legislatures to make rules for redistricting and governing congressional and presidential elections.

Republicans say the U.S. Constitution has always directly authorized state legislatures to make rules for the conduct of elections, including presidential elections. Democrats say this idea, encompassed by the Independent State Legislature Doctrine, is a fringe conservative legal theory that could endanger voting rights. The Supreme Court has reportedly never ruled on the doctrine.

The doctrine, if endorsed by the high court, could allow state legislatures to select presidential electors in disputed elections, something critics decry as a threat to democracy.

Election law expert J. Christian Adams, a former U.S. Department of Justice civil rights attorney who now heads the Public Interest Legal Foundation, an election integrity group, praised the Supreme Court for granting the case, which he said was “very important.”

“It means that the Court may take up all the nonsense that has been occurring over the last 10 years,” Adams told The Epoch Times by email.

In a series of Twitter posts, Democratic Party attorney and election law activist Marc Elias denounced the court’s decision to hear the case.

“The Supreme Court will hear a case next term that may validate the dangerous independent state legislature theory,” Elias wrote.

“Congress must enact comprehensive voting rights and anti-subversion legislation before it’s too late,” he wrote, adding “the future of our democracy is on the docket.”

The doctrine has been in the news because conservative Republican activist Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, sent emails to 29 Republican state lawmakers in Arizona urging them to choose the state’s presidential electors despite the disputed popular vote tallies showing Democrat Joe Biden had won the state, The Washington Post reported June 10.

The emails were sent Nov. 9, 2020, after media outlets had called the Arizona race for Biden. The efforts by Republicans to change the result in Arizona were unsuccessful and ultimately the state’s 11 votes in the Electoral College were awarded to Biden.

In her emails, Ginni Thomas, a supporter of then-President Donald Trump, asked Arizona legislators to “stand strong in the face of political and media pressure” and asserted that the responsibility to select electors was “yours and yours alone.” Lawmakers, she wrote, had the “power to fight back against fraud” and “ensure that a clean slate of Electors is chosen.”

The emails attracted the attention of the U.S. House select committee investigating the Jan. 6, 2021, security breach at the U.S. Capitol that delayed official congressional certification of the 2020 presidential election by several hours. Democrats also say there is a conflict of interest because Justice Thomas will participate in the court case about the independent state legislature doctrine. Through her lawyers, Ginni Thomas is resisting committee demands that she testify in the ongoing probe that many Republicans, including Trump, say is a sham.

Tim Moore, a Republican who is the speaker of the North Carolina House of Representatives, explained why he supports the doctrine.

“The U.S. Constitution is crystal clear: state legislatures are responsible for drawing congressional maps, not state court judges, and certainly not with the aid of partisan political operatives,” Moore said in March when he launched an appeal of the Supreme Court of North Carolina’s order redrawing the state’s electoral map against the wishes of the state’s GOP-majority legislature.

“We are hopeful that the Supreme Court will reaffirm this basic principle and will throw out the illegal map imposed on the people of North Carolina by its highest court. It is time to settle the elections clause question once and for all.”

The elections clause in Article 1 states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

The presidential electors clause in Article 2 states gives each state the power to appoint presidential electors “in such Manner as the Legislature thereof may direct.”

Three Supreme Court justices have said the doctrine applied in the Bush v. Gore case that resolved the disputed 2000 presidential election.

In an unsigned order issued on June 30, in Moore v. Harper, court file 21-1271, the Supreme Court agreed to hear the case. The justices did not explain why they decided to hear the case, which is their usual practice when deciding which appeals to take on. For such a petition to be granted, at least four of the nine justices must agree. The case is expected to proceed to oral argument in the court’s upcoming term that begins in October.

Moore filed his petition (pdf) with the court on March 17.

It was preceded by an emergency application seeking to stay a Feb. 14 ruling by the Supreme Court of North Carolina that required the state to modify its existing congressional election districts for the 2022 primary and general elections. Respondent Rebecca Harper is one member of a group of 25 individual North Carolina voters.

On March 7, the Supreme Court turned away (pdf) the stay application. In an opinion concurring in the denial of the stay, Justice Brett Kavanaugh invoked the so-called Purcell principle, writing that the high court “has repeatedly ruled that federal courts ordinarily should not alter state election laws in the period close to an election.”

Affiliate News Feeds

  • Reuters
  • Washington Examiner
  • The Federalist
  • The Epoch Times
  • The Guardian
  • The Gateway Pundit
  • Judicial Watch

By Patricia Tolson A new survey reveals that the majority of Americans do not trust the integrity of America’s elections. According to a poll conducted among likely General Election voters between Nov. 16–20… [...]

By Louise Chambers When her neighbor, a farmer, fell ill suddenly, a Minnesota teen volunteered to help him tend the land. The farmer was beyond grateful for the support, and the teen… [...]

EXCLUSIVE — U.S. air marshals are planning to stage an open rebellion against the Biden administration over a plan that would strip 99% of commercial flights from federal protection as… [...]

Attorneys general from 18 states are calling on UPS and FedEx to clarify their policies on shipping guns amid concerns about the companies being able to track gun owners without… [...]

Politico should have done far better than stating opinion as fact and blithely ignoring concerns that medical experts have raised. [...]

What the Rhine case reveals is the danger that a partnership between an equally politicized federal government and Big Tech presents to disfavored groups.  [...]

The U.S. Senate on Nov. 29 approved the “Respect for Marriage Act,” with a dozen Republicans crossing the aisle to vote yes. See below how each senator voted for the… [...]

Former White House chief of staff Mark Meadows must testify to a grand jury in Georgia that’s investigating possible election-related misconduct, South Carolina’s top court ruled on Nov. 29. “We… [...]

Guardian unpicks complex web of investment firms, wealth funds and tax haven-based businesses that own most of sectorEngland’s water: the world’s piggy bankCan global water investors be held to account?England’s… [...]

Household member apologises after Ngozi Fulani questioned over where her ‘people’ came fromA member of the Buckingham Palace household has resigned and apologised after a black guest at a reception… [...]

According to observations and signed affidavits, three poll workers and an election marshal who worked at the same Maricopa County voting center on Election Day witnessed concerning issues and irregularities… [...]

A Missouri man who murdered a police officer in 2005 has been executed for his crime. Kevin Johnson, 37, killed Kirkwood Police Sgt. William McEntee when he was called to… [...]

Though years ago India passed a sweeping law giving transgender people rights—and prohibiting discrimination in education, employment, and healthcare—the Biden administration is spending American taxpayer dollars to counter stigma and… [...]

(Washington, DC) – Judicial Watch announced today that it filed a Freedom of Information Act (FOIA) lawsuit against the Department of Homeland Security (DHS) for all communications between the Secret… [...]

NH Politician

NH POLITICIAN is owned and operated by USNN World News Corporation, a New Hampshire based media company specializing in the collection, publication and distribution of public opinion information, local,...