A little over a year after the Dobbs decision, which called into question the federal protection of the right to abortion, the Supreme Court of the United States was called upon to decide, on Tuesday, June 27, a new sensitive question in view. the next legislative and presidential elections in 2024: the organization and control of the polls in each state of the country.
Postal voting, office opening hours, documents to be presented to register on the electoral rolls… The American Constitution entrusts elected officials from each state with the task of setting “the time, place and procedure” of the polls. Their rules, however, are subject to review by local courts. And that’s exactly what elected officials in North Carolina hoped to change by defending the Independent State Legislature Theory, or ISLT, in the United States Supreme Court. .
In Moore v. Harper, the guardians of the temple of American law finally ruled that the Supreme Court of North Carolina had the power to invalidate the electoral map redrawn by the elected Republicans of this state in the south-east of the United States, thus rejecting this theory of “independent state legislature”. The Constitution “does not protect local legislatures from ordinary judicial review by the courts of their state”, ruled the Supreme Court, therefore refusing to modify the electoral law and give more latitude to the states to organize the ballots for the White House and Congress.
A decision immediately hailed by former US President Barack Obama: “Today, the Supreme Court rejected the minority theory of independent state legislators that threatened to overthrow our democracy and dismantle our system of checks and balances”, he cheered on Twitter.
A “minority” theory? As the Brennan Center for Justice, a progressive public policy organization, explains, the “independent state legislature theory” is an interpretation of the Constitution that has been championed for some years by a handful of jurists. It is based on a strict interpretation of Article I, Section 4, Clause 1 (“the Elections Clause”) of the United States Constitution, which states that:
The time, place, and procedure for the election of Senators and Representatives shall be determined in each State by that State’s Legislature; the Congress may, however, at any time, determine or modify by law the rules of the elections, with the exception of those relating to the place of the elections of the senators.
Proponents of this theory believe that it is validated by Article II, Section 1, Clause 2 (“the Voters Clause”):
Each State shall appoint, in the manner prescribed by its Legislature, a number of electors equal to the total number of Senators and Representatives to which it is entitled in Congress, but no Senator or Representative, or any person holding of the United States an office of trust or profit, may not be named an elector.
The phrase “the legislature thereof” in these two clauses shall be construed as giving only the state legislatures the power to alter electoral maps and pass laws to remove voters on the electoral lists.
Under this theory, the Supreme Court of a state cannot therefore interfere in the electoral redistricting decided by the legislators on the grounds that it is partisan, as was the case in North Carolina.
“The roots of the Independent State Legislature Theory go back to 2000 and the famous Bush v. Gore, explains Sébastien Natroll, freelance journalist and specialist in subjects related to American law. The ISLT reappeared at the end of Trump’s presidency, carried by a marginal fringe of conservatives and among them a law professor, Michael Morley. The latter argues that the ISLT is consistent with the “originalist” interpretation – an interpretative theory favored by conservatives – but there is absolutely no consensus within his own camp. »
Moore v. Harper was born out of the 2020 decennial census – one of the functions of which is to determine the electoral boundaries of the 50 states. In 2021, the North Carolina parliament had redrawn a new electoral map, particularly favorable to the Republican majority. This electoral gerrymandering, called “gerrymandering” in English, promised the elected representatives of the Republican Party to have 10 seats in the House of Representatives of North Carolina, against only 4 for the Democratic Party. The latter immediately challenged this division in court, considering it partisan and contrary to the Constitution of the State.
In February 2022, the North Carolina Supreme Court ruled in favor of the elected Democrats and invalidated the map, referring the case to the district court, which appointed independent experts to redraw a map, used during the mid-term elections. -mandate, in November 2022.
On March 17, 2022, the Republican Speaker of the North Carolina House of Representatives asked the United States Supreme Court to hear the case and approve the validity of the “Independent State Legislature Theory” ( “Independent State Legislature Theory”, ISLT).
By seizing the Supreme Court, elected Republicans have made a bet. In four years, Donald Trump has swung the institution into the conservative camp by appointing Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, one-third of the nine judges of the highest court in the United States. But that did not stop its members from invalidating the theory of an independent state legislature.
The question of electoral redistricting nevertheless remains open in the United States. In November 2022, following the midterm elections, the makeup of the North Carolina Supreme Court changed to five Republican justices and two Democratic justices. The institution then reversed its decision of February 2022 and considered, in April, that it was ultimately not competent to invalidate the division of constituencies. Opening the way for North Carolina parliamentarians to redraw a new map, this time favorable to Republicans, before the 2024 elections.
As for the Supreme Court of the United States, it was seized in October 2022 of a similar case by the elected Republicans of the legislative assemblies of Ohio.
