The debunked “independent state legislature theory” is on the Supreme Court’s docket, with potentially disastrous consequences.
Eliza Sweren-Becker , Ethan Herenstein
Published: August 4, 2022
What is Moore v. Harper about?
In Moore v. Harper, the Supreme Court will decide whether the North Carolina Supreme Court has the power to strike down the legislature’s illegally gerrymandered congressional map for violating the North Carolina Constitution. The legislators have argued that a debunked interpretation of the U.S. Constitution — known as the "independent state legislature theory” — renders the state courts and state constitution powerless in matters relating to federal elections.
Last year, North Carolina’s Republican-dominated state legislature passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. The gerrymander was so extreme that an evenly divided popular vote would have awarded 10 of the 14 seats to the Republicans .. https://www.democracydocket.com/wp-content/uploads/2021/11/2022.01.22-Final-Judgment_21-CVS-15426-and-21-CVS-500085-1.pdf ,, and only four to the Democrats. The map was a radical statistical outlier more favorable to Republicans than 99.9999% of all possible maps.
The unrepentant legislature proposed a second gerrymandered map, prompting a state court to order a special master to create a fair map for the 2022 congressional elections. Unwilling to accept this outcome, two Republican legislators asked the U.S. Supreme Court to step in and reinstate their gerrymandered map.
The Elections Clause delegates to states the power to regulate federal elections while giving Congress the overriding authority to make or alter such laws. Proponents of the independent state legislature theory — like the gerrymanderers — read the Elections Clause to give state legislators near-exclusive authority to regulate federal elections, prohibiting any other state entity — like state courts or governors — from placing checks and balances on that power. In this case, the gerrymanderers are arguing that the theory licenses them to violate the state constitution when drawing congressional maps and that the state courts do not have the power to stop them.
What’s wrong with the independent state legislature theory?
The independent state legislature theory runs contrary to the constitutional text, history, practice, and precedent. The framers famously distrusted .. https://www.brennancenter.org/our-work/analysis-opinion/putting-elections-wrong-hands .. state lawmakers, so much so that when they drafted the Elections Clause, they insisted that Congress retain the ultimate power to set the rules for federal elections. The framers would not have established — and indeed did not establish — a regime that would permit state legislatures to regulate federal elections without the ordinary checks and balances that apply to state lawmaking power. State practice, from the country’s founding to today, also refutes the theory. For example, many framers — including James Madison .. https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1399&context=thestmaryslawjournal .. — voted to adopt state constitutions that regulated federal elections, as North Carolina’s does today.
The Supreme Court has not explained why it decided to take the case, although that’s not unusual. However, some justice’s statements at earlier points in the case shed some light. When the Supreme Court denied emergency relief to the gerrymanderers in March, three justices — Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch — voiced support for the theory, as they had previously done in other dissenting opinions in 2020 elections cases. A fourth justice — Brett Kavanaugh — voted to leave the court-approved map in place for the 2022 elections, but he said that he saw “serious arguments .. https://www.democracydocket.com/wp-content/uploads/2021/11/21A455-Order.pdf ” on both sides.
None of these justices, however, have had the benefit of oral argument and full briefing before formulating their perspectives. And crucially, whereas it takes five public votes for the justices to decide a case, it only takes four private votes for the Court to take a case for review. So the fact that four justices voted to hear Moore doesn’t mean that a majority is willing to endorse the unprecedented arguments offered by the state lawmakers in the case. The Court could still reject the theory and reaffirm the way our elections have worked for over two centuries.
What are the broader stakes?
The immediate issue in Moore is whether the state legislators’ extreme partisan gerrymander will stand in North Carolina. But adopting the independent state legislature theory would also mean that voters across the country have no judicial remedy — in state court or in federal court — to fight partisan gerrymandering.
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