We often hear about the United States having a “republican form of government.” That comes directly from Article IV, Section 4, of the U.S. Constitution, which emphatically proclaims: “The United States shall guarantee to every State in this Union a Republican Form of Government.”
The Supreme Court will hear arguments later this year in Moore v. Harper, a case that presents the question of whether a state legislature, acting completely on its own, can set rules governing federal elections in the state, even rules that are contrary to the state’s laws. The facts are that North Carolina’s Republican-controlled legislature approved a new redistricting plan that was struck down by the state’s Supreme Court earlier this year as an “egregious and intentional partisan
gerrymander.” The plan violated the state’s constitution, so that should have been the end of it.
But the controversy, which revolves around a few innocuous words in the U.S. Constitution, has been brewing in rightwing legal circles since three Supreme Court members breathed life into them in the Bush v. Gore decision in 2000. The words in Article I, Section 4, say: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” The North Carolina Legislature is asking the Court to decide that these words give it the final say over redistricting and, presumably, all other rules for federal elections held in the state. Their idea is called the “independent state legislature theory” (ISLT).
If the Supreme Court agrees with the GOP-controlled legislature, it will be a godsend to the Republican Party in two critical respects. First, it will allow gerrymandered GOP legislatures to self-perpetuate and to approve voting rules that disfavor all other parties. Governors, who are necessarily more politically moderate than gerrymandered legislatures because they must appeal to statewide constituencies, and state supreme court justices, who are either appointed by those governors or face their own statewide elections, would have no ability to counter those actions.
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