BIGGEST BATTLE YET: Supreme Court To Hear Little-Noticed Case on Election Law

A little-noticed case on election law and election authority holds the potential to reshape the constitutional landscape …..

Little-Noticed Case on Election Law Could Be High Court’s Biggest Battle

A new front in America’s running legal drama is set to open: Who holds the ultimate authority to set election rules — state legislatures or the courts that review their decisions?

Even as the Supreme Court mulls decisions on gun rights, abortion, and affirmative action that hold the potential to reshape the constitutional landscape, a new front in America’s running legal drama is set to open: Who holds the ultimate authority to set election rules — state legislatures or the courts that review their decisions?

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The occasion for this reckoning is the battle over state congressional districts. The constitutional clause at stake reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

With their characteristic commitment to a blended federalism, the Founders charged the states with crafting the particulars of how federal office holders would be elected. The responsibility for this work is assigned to the voters and their representatives, subject to Congress’s power to “make or alter such Regulations.”

The case seeking the high court’s review, Moore v. Harper, asks “whether a State’s judicial branch may nullify the regulations” governing the “Times, Places and Manner” of electing federal officeholders. It cuts to a fundamental question: Do courts, via judicial review, have a role in steering how elections are managed, or is that power vested solely in state legislatures?

The question was provoked by a gerrymander kerfuffle in the Tar Heel State, with the state supreme court rejecting congressional maps generated by the legislature as tainted by aggressive gerrymandering. The state supreme court assigned a special master to devise a bespoke gerrymander that passed the court’s muster.

After the North Carolina supreme court refrained from swatting back the lower court’s replacement of the legislature’s map with the one it commissioned, the speaker of the North Carolina House of Representatives turned to the United States Supreme Court.

In refusing to bow to the legislature, the North Carolina state supreme court issued a sweeping defense of judicial authority, noting that sidelining courts would be “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”

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