Litigation Update: State Legislatures, State Courts, and Federal Elections

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Who decides the rules for federal elections? The Constitution generally assigns that power to the “Legislature” of each state, but state courts are playing an increasing role. Recent elections have witnessed an increase in decisions applying broad provisions of state constitutions to override election laws and congressional maps adopted by legislators.

That is what happened in Moore v. Harper, which the Supreme Court will hear in its upcoming term. Recently North Carolina gained a House seat, and its legislature adopted a new district map. The state’s supreme court deemed that map a partisan gerrymander and substituted in its place the court’s own map. That result, it concluded, was required by four separate parts of the state constitution, including clauses protecting the “freedom of speech” and guaranteeing “free” elections. Although the Supreme Court denied an emergency request to block that ruling for the 2022 election, it agreed to take the case to answer the broader question of state-court authority over the laws governing federal elections. 

Supporters of legislature primacy—often called the “independent state legislature” doctrine—say that a decision enforcing the doctrine will cut back on election-litigation gamesmanship, end the disruption of last-minute rule changes, and put primary responsibility back in the hands of democratically accountable legislators. Opponents, however, say that a decision for the state would threaten voting rights and democracy itself. Their Exhibit A: the Trump campaign’s failed strategy to convince state legislatures to overrule voters in the 2020 presidential election.

This webinar will provide an overview of the legal debate, background on the Moore case, and discussion of the key issues and controversies that the Court will confront.

Featuring:

Andrew M. Grossman, partner at Baker & Hostetler LLP, co-leader of the firm’s Appellate and Major Motions practice, and Adjunct Scholar at the Cato Institute

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.