CHARLOTTE, N.C. — This week, the US Supreme Court is set to hear arguments about a gerrymandering case here in North Carolina, Moore v. Harper. At issue, "independent state legislature theory", an controversial legal theory that suggests state legislatures have the final say on federal election laws.
"It just fundamentally misunderstands the way American governments worked for centuries. And it's threatening to upend all of it," Tom Wolf, deputy director at the Brennan Center for Justice, said.
Critics of the theory argue it undermines America's history of three separate branches of co-equal government, all for short-term political gain.
"This theory is about destroying our system of checks and balances. For over 200 years, state legislators have shared power for making the rules for federal elections with any number of people, including state courts, governors, election officials, and even the people themselves through direct democracy, ballot initiatives, referenda," Wolf said.
The lawsuit was brought after a decade of legal battles between the Republican-led North Carolina General Assembly and the state supreme court, focused on redistricting.
"North Carolina has a highly activist Supreme Court that has interfered and meddled with the will of the people. And so in most other states, it's not going to make a big difference, because they don't have activist courts like the court in North Carolina," J. Christian Adams, attorney with the Public Interest Legal Foundation, said.
Adams and others calling for change point to the elections clause of the U.S. Constitution that says state legislatures are responsible for conducting federal elections.
"The Constitution already says in its plain language that the legislatures are responsible for setting the rules for the election lines for Congress," Adams said.
Still, the case is bringing together unconventional allies.
"There's a chorus of voices on both sides of the aisle saying that this idea is bad and wrong," Wolf said.
Wolf warned the case could have "catastrophic" results.
"It would be replacing the checks and balance system that we have, with a new system of legislative supremacy that's just not American. It's not the way we do things here. It's not the way we ever have," Wolf said.
The US Supreme Court will hear arguments Wednesday, Dec. 7.
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