A little over a year after the Dobbs ruling, which called into question the federal protection of the right to abortion, the Supreme Court of the United States was called to decide, on Tuesday 27 June, a new delicate issue in view of the upcoming legislative elections and presidential elections in 2024: the organization and control of the polls in every state of the country.
Voting by mail, office opening hours, documents to be presented in order to register on the electoral roll… The American Constitution entrusts the elected representatives of each state with the task of establishing “time, place and procedure” surveys. Their rules, however, are subject to review by local courts. And that’s exactly what North Carolina elected officials hoped to change by defending, in the US Supreme Court, the theory of the independent state legislature, the theory ” of the independent state legislature or ISLT.
In case Moore v. Harperthe guardians of the temple of American law have finally ruled that the North Carolina Supreme Court has the power to invalidate the electoral map drawn by Republican elected officials of this state in the southeastern United States, thus rejecting this theory ” of the independent state legislature “. The Constitution “does not protect local legislators from ordinary judicial review by the courts of their state”ruled the Supreme Court, thus refusing to change the electoral law and to give more freedom to the states to organize the polls for the White House and Congress.
A decision immediately welcomed by former US president Barack Obama: “Today, the Supreme Court rejected the minority theory of independent state lawmakers that threatened to overthrow our democracy and dismantle our system of checks and balances,” he cheered on Twitter.
A theory defended by conservative jurists
A theory “minority” ? As explained by Brennan Center for Justicea progressive organization dedicated to public policy, “independent state legislature theory” it is an interpretation of the Constitution, defended for several years by a handful of jurists. It is based on a strict interpretation of Article I, Section 4, Clause 1 (“the election clause”) of the United States Constitution, which states that:
The time, place, and procedure for electing senators and representatives shall be determined in each state by that state’s legislature; however, Congress may, at any time, determine or change by statute the rules of elections, except those relating to the place of election of senators.
Proponents of this theory believe that it is validated byArticle 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 office in the United States trusted or of profit, cannot be nominated as an elector.
The phrase “the related legislation” (“state legislator”) appearing in these two clauses is interpreted as giving only state legislatures the power to change electoral maps and to pass laws permitting the deletion of voters from the electoral roll.
According to this theory, the Supreme Court of a state cannot therefore interfere in the electoral reorganization decided by the legislators because it is biased, as happened in North Carolina.
“The roots of the ‘Independent State Legislature Theory’ go back to 2000 and the famous Bush v. blood, explain Sebastian Natrollfreelance journalist and specialist in matters related to American law. ISLT reappeared at the end of the Trump presidency, led by a marginal fringe of conservatives and among them a law professor, Michael Morley. The latter argues that ISLT conforms to the “originalist” interpretation – an interpretive theory favored by conservatives – but there is absolutely no consensus within his field. »
Census 2020 and “gerrymandering”
Moore v. Harper was born out of the 2020 decennial census, one of whose functions is to determine the electoral boundaries of the 50 states. In 2021, the North Carolina legislature had redrawn a new electoral map, particularly favorable to the Republican majority. This electoral gerrymandering, called “gerrymandering” in English, promised elected representatives of the Republican Party to have 10 seats in the North Carolina House of Representatives, 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 Cnorth carolina supreme bear vindicated the elected Democrats and invalidated the cardreferring the case to the district court, which commissioned independent experts to redraw a map, used in the midterm elections, in November 2022.
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On March 17, 2022, the Republican Speaker of the North Carolina House of Representatives asked the US Supreme Court to hear the case and approve the validity of the ” Independent State Legislature Theory (“Independent State Legislature Theory”, ISLT).
An open question
By taking over the Supreme Court, elected Republicans have made a gamble. In four years, Donald Trump transformed the institution into the conservative camp by appointing Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, one third of nine justices to the highest court in the United States. But that hasn’t stopped its members from invalidating the theory of an independent state legislature.
However, the question of reorganization remains open in the United States. In November 2022, following the midterm elections, the composition of the North Carolina Supreme Court changed: it now consists of five Republican judges and two Democratic judges. The institution therefore reversed its decision of February 2022 e estimated, in April, which was ultimately not competent to invalidate the division of constituencies. Paving the way for North Carolina lawmakers to redraw a new map, this time favorable to the Republicans, ahead of the 2024 election.
As for the US Supreme Court, it has been seized October 2022 of a similar case by elected Republicans in the Ohio legislature.
