The US Supreme Court announced Thursday that it will hear a controversial election case which deals with an emerging legal theory based on the elections clause of the US Constitution. The theory claims that under the elections clause, state legislatures have unchecked power to determine election policy and implementation, and that power cannot be checked by state courts or state constitutions.

In Moore v. Harper the North Carolina State Legislature is appealing to implement it’s congressional map, which was previously struck down by state courts and replaced with a court-ordered map that is being used for the 2022 midterms. The court found that the original map violated the state constitution’s clause protecting the fairness of elections by granting Republicans an unfair advantage.

The court previously refused to hear the case on an emergency basis, but Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas signaled a willingness to entertain the new legal theory in their dissent. Justice Alito, writing in the dissent, said:

Both sides advance serious arguments, but based on the briefing we have received, my judgment is that the applicants’ argument is stronger. The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause.

Carolyn Shapiro, a law professor and founder and co-director of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, disagreed with the Justice’s interpretation saying that “the legislatures are created by constitutions. Their powers are defined by constitutions. The way those powers interact with other branches of state government is defined by state constitutions. Limitations on those powers are defined by state constitutions.”