The Supreme Court is considering a dispute in North Carolina that could upend the election law

WASHINGTON — The Supreme Court will hear a key case Wednesday that could upend electoral law as judges consider whether to reinstate Republican-drawn congressional districts in North Carolina.

The appeal, brought by North Carolina Republicans, prompts judges to adopt a previously obscure legal argument called the “independent state legislature” theory, which could strip state courts of the authority to overturn certain electoral laws enacted by state legislatures.

The theory was embraced by supporters of former President Donald Trump, who cited it on various occasions during and after the 2020 presidential election.

The case, which could have far-reaching implications for a range of electoral issues, is being closely monitored for its potential impact on the 2024 presidential election.

Republicans, led by North Carolina House Republican Speaker Tim Moore, invoked the theory after the state Supreme Court struck down the congressional district map in February.

The state court ruled that the 14 congressional districts — drawn by Republicans to maximize the influence of Republican voters in a state heavily contested by both main parties — were “unlawful partisans.” The court, which had a Liberal majority at the time, said the cards violated various state constitutional provisions, one of which requires “all elections to be free.”

Pro-suffrage advocates and Democratic voters had turned to state court after the US Supreme Court ruled in 2019 that partisan gerrymandering lawsuits could not be heard in federal courts but left open the possibility for state courts to deal with the issue could deal with.

Moore and other Republicans immediately asked the Supreme Court to reinstate the cards, saying the state court had exceeded its powers. The Supreme Court agreed to take the case but left a spare card that was used for this year’s midterm election. Democrats and Republicans each won seven seats.

The independent state legislature’s argument hinges on the wording in the Constitution, which states that the electoral rules are “prescribed in each state by the respective legislature.”

Proponents of the theory, which has never been endorsed by the Supreme Court, say the language supports the notion that lawmakers have ultimate power under state law over federal election rules, potentially independent of potential limitations imposed by state constitutions.

The theory was not only floated by Trump and his allies in 2020, but also emerged in the 2000 presidential election during the Florida legal battle that eventually led to the inauguration of Republican President George W. Bush.

The Supreme Court in 2020 refused to intervene in the various election-related cases that raised the theory, but four conservative justices did during the legal battle showed some support for it and gave his supporters hope that a majority of them might be ready to embrace it. The court has a conservative majority of 6:3.

There are several different versions of the argument, some of which would simply limit the powers of state courts in certain circumstances, and others would go further by giving legislatures virtually uncontrolled powers.

A Supreme Court ruling that embraces the theory would affect not only the redistribution of disputes, but also other electoral-related rules on issues like absentee voting and voter access to polling stations that lawmakers may wish to enact, even if state courts have ruled that these rules are considered to violate state constitutions. The theory could also challenge the governors’ veto power.

Those supporting the theory in briefs filed with the court include John Eastman, the attorney involved in Trump’s effort to overturn the 2020 election, who argued that then-Vice President Mike Pence could block confirmation of President Joe Biden’s victory on Jan. 6, 2021.

Various conservative groups, pushing for tighter voting restrictions and claiming voter fraud is a major problem, have also backed the theory in court.

Democrats and suffrage activists have issued stark warnings about the potential fallout of the fall amid attempts to overturn the results of the 2020 presidential election, though many high-profile GOP candidates who denied or questioned Biden’s victory lost in this year’s midterm election.

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