The US Supreme Court on Wednesday heard arguments in Moore vs. Harper, a case with the potential to have profound implications on the structure of the US political system.
The case arose out of a decade-long litigation battle in North Carolina over the shape and composition of the state’s legislative and voting districts, the drawing of which is called “gerrymandering” when it’s done to artificially create districts giving one party an undue advantage over the other.
When after the 2020 census, the state’s Republican-controlled legislature drew up new legislative districts, Democrats challenged the districts’ validity, claiming they’d been drawn in a way that minimized the electoral influence of nonwhite voters and maximized the influence of white voters. About 40% of North Carolina’s population is made up of various nonwhite groups, who tend to vote Democrat.
In February 2022, the North Carolina Supreme Court ruled on appeal from a lower court that the districts had been gerrymandered, invalidating the new election map. However, the state legislature then challenged its ruling, appealing to the US Supreme Court.
Independent State Legislature Theory
According to the petition, the Republican state legislators have argued that a state’s judicial branch cannot nullify election regulations created by the state’s legislature, including maps of election districts or appointment of Electoral College electors. If the legislators’ new rules seem to violate the state’s constitution, their judgment is considered superior, and overrides the constitution. This they call the “Independent State Legislature Theory.”
The argument is based on a reading of the US Constitution, which in Article I says that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” In Article II, it also notes that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.”
In the US political system, Electoral College electors cast votes for the President of the United States on behalf of the states they represent, and while they usually follow the results of the popular election in their state, there’s no legal compulsion for them to do so.
While some scholars, including Supreme Court justices, have tossed around the idea of the independent state legislature theory, it’s widely considered to be a “fringe” theory. The high court has never ruled on a case concerning it before, although it was mentioned before the court by attorneys for George W. Bush in the 2000 case Bush v. Gore, in which Bush sought to stop the recount of Florida votes. The court sided with Bush, who as a result defeated Al Gore and became president.
“To the extent that advocates of the independent-state-legislature theory have any evidence at all to support the theory, it is exceedingly thin. Their textual argument is that the total disempowerment of state courts necessarily follows from the fact that the elections clause empowers the state legislatures to prescribe the ‘manner’ of holding congressional elections,” J. Michael Luttig, a former federal appeals court judge from Texas who served as a leading conservative legal thinker in the 1990s, wrote in The Atlantic in October.
“But there is neither more nor less significance to the fact that the Constitution assigns this quintessential legislative power to the state legislatures than that the Constitution assigns federal lawmaking to Congress, rather than to the executive or the judiciary,” he added. “And yet, the Constitution provides for judicial review of the actions of both.”
Luttig isn’t alone among conservatives in opposing the theory, either: Steven Calabresi, a founder of the conservative Federalist Society, was one of three scholars to sign an amicus brief filed with the high court in October in which they urged the court not to “flout core tenets of the American Founding” by hearing the case.
“Must this court address ISL in this case?” they asked. “No.”
“This Court could instead affirm on the narrow ground that the North Carolina Supreme Court has concluded that the North Carolina legislature has chosen to enlist state courts in guaranteeing that congressional elections in the state conform to state constitutional principles. Even if the North Carolina constitution somehow does not apply of its own force, it applies because the state legislature has incorporated it by reference,” the wrote.
Voter Suppression
The court’s decision to hear the case is also seen by left-wing analysts as part of a greater trend by conservatives to exert control over the electoral system, especially in the aftermath of the November 2020 presidential election. In that election, then-US President Donald Trump accused election officials in several states of helping Joe Biden to win by fraudulent means, including the widespread use of mail-in ballots, which had been adopted as a result of the COVID-19 pandemic.
“If the Supreme Court adopts the North Carolina legislators’ proposed rule in Moore, it will make it even easier for state legislatures to suppress the vote and subvert election results, and it will give both political parties the green light to draw gerrymandered election districts,” the American Civil Liberties Union warned on Tuesday.
“Adopting the legislators’ rule would also require the court to turn its back on principles ostensibly favored by its current majority, like original meaning and federalism, which stand against the legislators’ radical and disruptive legal theory,” they added.
Several states had already been moving over the last decade to restrict access to voting booths with requirements such as showing certain ID cards, and purging voter rolls, which critics say are aimed at denying Black and immigrant voters the opportunity to vote. However, after the 2020 election, those efforts intensified, including limiting the use of mail-in ballots and the number of voting stations.
In 2013, the Supreme Court gutted a key part of the 1965 Voting Rights Act intended to protect against suppression of the Black vote, which required districts with a history of doing so to get approval from the federal government before changing their voting regulations. For decades before the law was passed, Southern states with large Black minorities had used voting requirements such as literacy tests and intimidation to stop would-be Black voters from casting their ballots, as part of the Jim Crow system of legal racial segregation.