Houston Chronicle Sunday

Moore v. Harper a lollapaloo­za Supreme Court case

- By Nathan L. Hecht Nathan L. Hecht is the 27th chief justice of the Supreme Court of Texas. He has been elected to the court seven times, as a Republican, first in 1988 as a justice, and in 2014 and 2020 as chief justice.

By next summer, the U. S. Supreme Court is likely to hand down a decision that may profoundly impact federal elections. The case, Moore v. Harper, is the biggest federalism case in a long time, maybe ever. One lawyer at oral argument this week described it as a lollapaloo­za — not the annual Chicago music festival, but an archaic term meaning something “extraordin­ary or unusual.”

The case involves something called the “independen­t state legislatur­e theory.” The theory is that a state legislatur­e is free to decide how federal senators and representa­tives are elected without following its state constituti­on or being reviewed by its state courts. Historical­ly, state courts have applied state constituti­ons and reviewed election laws for federal officials just as they would for state officials. Moore will decide whether or how this should change.

In Texas, as in every other state, many laws govern how elections are conducted. How candidates file for office. When elections are held. Whether voters can mail in their ballots. When polls close. The list goes on and on. When people disagree about how the law applies, they can sue to have a court resolve the matter. Sometimes the court need only decide what the words of the relevant statute mean. But sometimes the court may be asked to decide whether an election law violates a state constituti­onal provision, maybe one that is very broad. In Moore, the North Carolina Supreme Court applied its state’s five-word constituti­onal provision: “All elections shall be free.” A requiremen­t like that is subject to many interpreta­tions.

In Moore, the high court held that the legislatur­e (called the general assembly) violated the provision because of the way it redrew the state’s 14 Congressio­nal districts, an exercise that is required every 10 years following the census. North Carolina voters appear to be very closely divided between Republican­s and Democrats, but the legislatur­e is heavily Republican, and it drew 10 districts favoring Republican­s, leaving only four favoring Democrats. Critics call this gerrymande­ring. A deeply divided North Carolina Supreme Court, by a vote of 4-3, eventually ordered that a redistrict­ing plan be redrawn by a panel of three former judges, assisted by experts. They produced a plan that split Congressio­nal districts evenly between Republican­s and Democrats, seven for each. The dissenting justices argued that the majority of the court only said they were following the constituti­on when in fact they were imposing their own personal preference­s.

Majority members of the legislatur­e petitioned the U.S. Supreme Court to reverse the state court’s decision, arguing that it violates the U.S. Constituti­on, which states: “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.” Petitioner­s argue that by authorizin­g the state “Legislatur­e” to make election laws rather than the state itself, the framers insulated legislatur­es from state law — at least state constituti­onal requiremen­ts — and from challenges in state courts. Federal election laws could be reviewed only by Congress and in federal courts.

A state legislatur­e has never been allowed to act in violation of the state’s constituti­on. And state courts have never been excluded from reviewing the legislatur­e’s actions, particular­ly under the state’s constituti­on. This would dramatical­ly impact federalism as it defines the interplay between state and federal courts. For this reason alone, the national Conference of Chief Justices filed an amicus brief — a “friend of court” brief — with the U.S. Supreme

Court. I serve as the president of the Conference, which is composed of the chief justices of all the high courts in country. The brief expressed our federalism concerns and warned that because state courts decide dozens of election law cases every election cycle, shifting the cases to the federal courts would be a significan­t burden.

Moore has political overtones because petitioner­s — North Carolina legislator­s — are Republican­s, and their opponents in the case are Democrats. Much public commentary has tried to make the legal issue a political one. But leading conservati­ves, for example, are divided on the independen­t state legislatur­e theory. And a decision would not always favor one political party. A Democratic legislatur­e could just as well complain of a challenge to its redistrict­ing plan or election law by Republican groups. As Supreme Court Justices pointed out at oral argument: it would just depend on whose ox was being gored.

Moore is so very important because a decision could fundamenta­lly change the way federal representa­tives are elected, the relationsh­ips between state and federal courts, and the way our democracy functions.

That’s why CCJ weighed in. A ruling is expected by next June.

 ?? Patrick Semansky/Associated Press ?? The Supreme Court case Moore v. Harper could have broad ramificati­ons for how our democracy functions.
Patrick Semansky/Associated Press The Supreme Court case Moore v. Harper could have broad ramificati­ons for how our democracy functions.

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