INTERPRETIVE DANCE — One of the biggest cases on the Supreme Court's docket next term is Moore v. Harper . At its core, it is yet another fight over North Carolina's congressional maps. But this is one that will likely have far reaching effects beyond the state's boundaries. Boiled down to its essence, Republicans in North Carolina are pushing the nation's highest court to invalidate a state court's redistricting decision under a constitutional interpretation referred to as the "independent state legislature" theory. The theory revolves around the Elections Clause of the Constitution, which reads that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," subject to regulations from Congress. Proponents of the ISL theory argue that that wording — an explicit mention of a "legislature," and not the judiciary — means there is little, or no, role for the state judges to check the election-related decisions of state legislators. Many prominent election scholars and voting rights groups, however, say that could mark a dramatic remaking of America's election laws resulting in a consolidation of power in the hands of state legislatures. It could, for example, give them near-unchecked authority to draw political boundaries in the favor of one political party, or pass more strident requirements around registration or voting practices without a way to challenge them in state court. The once-fringe theory, which traces its roots back toward former Chief Justice William Rehnquist's concurrence in Bush v. Gore, has now found near-universal buy-in from across the conservative legal universe, as seen in the friend of the court briefs that poured in earlier this week. Briefs from the Honest Elections Project — part of the sprawling network of groups tied to conservative activist Leonard Leo, one of the most influential people on the American legal right; the American Legislative Exchange Council ; the Republican National Committee and National Republican Congressional Committee; and others — argue to varying degrees for stripping state courts of much of their ability to review election procedures set by legislatures. They contend that critics of the theory are engaging in overwrought, " political histrionics." And John Eastman (yes,THAT John Eastman, the lawyer who was behind then-President Donald Trump's attempts to have states' valid electors tossed out), goes a step further in his brief for The Claremont Institute , tying this larger debate to similar wording in the U.S. Constitution's Electors Clause, which determines how states appoint electoral college electors. One result of such a reading would be to box out state courts in disputes over many aspects surrounding presidential elections — that could lead to even more uncertainty around presidential electors, a gray area that Trump and his allies sought to exploit last year. Already, four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — have all signaled at least some favorability to some form of the theory. The question is if one of the court's other two conservative justices will join them, and, if so, how far a majority will go. The independent legislature debate is not happening in a vacuum. Instead, it is coming during the same term as another pivotal Supreme Court case on redistricting — this time on racial gerrymandering in Alabama. After a lower court found that the maps were diluting the voting power of Black voters, Republicans there appealed. That case could potentially weaken the already diminished Voting Rights Act by effectively making it much harder to bring racial discrimination claims in federal court. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight's author at zmontellaro@politico.com or on Twitter @ZachMontellaro.
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