One of the Supreme Court’s most consequential cases next term has already galvanized all 50 state supreme court chief justices to band together. The Conference of Chief Justices has penned an amicus brief to the high court aiming to stave off a decision that would give lawmakers free hands to set ground rules for federal contests.

The case, Moore v. Harper, turns on a challenge to North Carolina’s congressional map, drawn by Republicans in the state legislature, as being allegedly illegally gerrymandered to disfavor Democrats. The map was overturned by the North Carolina supreme court as a violation of the “fundamental right to equal voting power” enshrined in its state constitution 

The cartographers reply by invoking the Constitution’s Elections Clause, which reads in part, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” They argue that a plain reading discloses no role for courts in the process. 

This position has come to be known as the “independent legislature theory,” and it maintains that the national parchment “prohibits state courts from reviewing state laws regulating federal elections.” A 2015 decision written by Justice Ginsburg in Arizona State Legislature v. Arizona Independent Redistricting Commission rejected the independent legislature theory. 

That was met by a scathing dissent from Justice Antonin Scalia, who called it “so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures.” That view, once the minority, could now find expression in a majority holding.

The state judges, threatened with obsolescence when it comes to elections, argue that the Elections Clause “does not otherwise displace the states’ established authority to determine the final content of their election laws, including through normal judicial review for constitutionality.”

The chief justices argue that “state judicial review under a state constitution intrudes no more on a state legislature’s prerogatives than does review under the U.S. Constitution.” They stake out the position that the “Elections Clause does not preclude States and state legislatures from providing a role for courts.” 

The brief offers a full-throated defense of the role of judges in the constitutional system, noting that “Judicial review — review of a legislature’s act for its compliance with other laws and the Constitution — preceded the Founding and is embedded in the U.S. Constitution and numerous state constitutions of the Founding era.”

Citing 78 Federalist, written by Alexander Hamilton, the state judges invoke the Founder for the notion that constitutional values can be preserved in “no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”