The Supreme Court is poised to cut the heart out of majority rule

One of the two constitutional provisions the independent legislature theory purports to rely on is directly at issue in the Moore case. The Constitution’s elections clause provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

Yet in North Carolina, the Legislature itself expressly specified that the “manner” of holding elections would include the state courts’ final authority to overturn improper districting decisions. The state’s General Assembly has even detailed the findings courts must make, how and where such challenges must proceed, and the courts’ authority to impose an alternative map. Using the independent legislature idea to throw aside North Carolina’s election law would, therefore, violate the elections clause itself.

And even in states whose legislatures haven’t specifically assigned their courts a role in elections, any ruling granting legislators alone unfettered election authority would contradict our whole constitutional scheme. It would rip all 50 state legislatures from their moorings in the state constitutions that create those legislatures and limit their authority within three branches of state government. Such a holding would commandeer states’ constitutions, the ultimate repository of the power the 10th Amendment “reserves to the States respectively, or to the people.”