Does a state supreme court have the power to find that an act of the state legislature violates the state constitution? The answer to that question should be clear and obvious, but the conservative justices of the Supreme Court expressed doubt about it at oral arguments in Moore v. Harper on Wednesday. It is not hyperbole to say that the future of American democracy may turn on the court’s answer.
The case concerns the so-called “independent state legislature” theory, which posits that the legislature of a state gets the final word on how elections to Congress are conducted and state courts are powerless to do anything even if the legislature is violating the law. It is a theory of recent vintage, never having been accepted in American history. If adopted by the Supreme Court, its implications are ominous.
Moore v. Harper arises from partisan gerrymandering for congressional districts in North Carolina. North Carolina is almost evenly divided between Democrats and Republicans. In 2020, Donald Trump beat Joe Biden in the state, but only by 1.35 percentage points. North Carolina has a Democratic governor and attorney general, but a Republican-controlled state legislature.
