This is the Libertarian Podcast from the Hoover Institution. I'm your host Tom Church and I'm joined of course by the Libertarian Professor Richard Epstein. Richard is the Peter and

Kirsten Bedford Senior Fellow here at the Hoover Institution. He's the Lawrence

A Tish Professor of Law at NYU and is a senior lecturer at the University of Chicago.

Richard, you and I are both back from a little well-deserved summer vacation after what may have been I think the most consequential

Supreme Court term in a decade or two but the good Lord willing and creeks don't rise

there will be more cases next year and there's one in particular I want to ask you about and that's Moore v.

Harper. So last week the Supreme Court agreed to hear the case in the coming fall term.

Now this case comes out of North Carolina, where Republican legislators are upset

with the state Supreme Court in North Carolina

and their decision to throw out the legislature's

preferred and some would say gerrymandered congressional map and replace it with one drawn by the state Supreme Court.

Now listeners may have heard the term the independent state legislature theory and that's what this case deals with.

The issue at hand is the extent to which the elections

clause of the Constitution applies or not. So Richard, I know you're going to give us the background on this, but at the end, I also want to know,

our state Supreme Court's allowed to rule on state legislation

with regard to decisions regarding elections? Well I'm going to start at the end and

then go to the beginning I think the answer is that they are and I think that the mistake in the general analysis is to start with the election cause of the Constitution. There are actually two of them when having to do with the Congress, which is what's at stake here, and the other having to do with the choice of elect this for the president.

But let me, in effect, start with the first of these sets, and what it says in effect is that when you're

dealing with these particular cases the in the Congress that the legislature shall determine

the time, place, and manner of what's going on, and then with an exception for the place of senators, it can be reviewed by Congress.

Well, the first thing to ask is this particular situation having to do with redistricting a question of time, place, and manner legislation.

And if you think of the way in which that clause is used in Alvestly in connection with the First Amendment.

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