Moore Maps, More Problems

The Supreme Court will hear oral arguments Wednesday in Moore v. Harper, a case that features a dispute over gerrymandering and the novel legal argument known as independent state legislature theory. The outcome could significantly disrupt election administration across the country. 

North Carolina’s congressional district maps have been hotly contested in recent years. In the 2017 case Cooper v. Harris, the Supreme Court struck down a notorious racial gerrymander from 2011. Two years later, in Rucho v. Common Cause, the court held that partisan gerrymandering falls outside the jurisdiction of federal courts but suggested that state courts could play a role.

“Our conclusion does not condone excessive partisan gerrymandering,” Chief Justice John Roberts wrote for the majority. “Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts.” He added that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”

This week Roberts and his colleagues are being asked to reconsider the extent to which state constitutions and courts can actually provide standards and guidance. In this case, the court won’t review the maps themselves, as they have previously. Instead, the justices will weigh in on the process by which the maps were put together.

The case pits Tim Moore, speaker of the North Carolina House of Representatives, against a group of North Carolina residents and voters who oppose the congressional maps drawn by the state legislature after the 2020 census. In an extended back-and-forth, the North Carolina Supreme Court—which, until January 1, has a Democratic majority—twice declared maps offered by the GOP-controlled state legislature to be partisan gerrymanders that violate a state constitutional provision that elections must be “free.” (North Carolina Gov. Roy Cooper, also a Democrat, doesn’t factor into this discussion, as he is constitutionally unable to veto redistricting-related legislation.)

In February of this year, the state adopted a remedial map drawn by a special masters team for the 2022 elections. The U.S. Supreme Court denied a last-ditch request by North Carolina Republicans to overturn that map ahead of the midterms before eventually agreeing to hear Moore v. Harper—and that’s where the independent state legislature theory comes in.

Moore’s side has advanced an argument based on this theory, which has become increasingly popular among conservatives since the 2020 election. They note that Article I of the U.S. Constitution states that “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” Therefore, judicial review of the legislature’s proposed congressional maps by the state supreme court violates the federal constitution.

“Yes, a State’s regulation of the time, place, and manner of elections is restricted by the limits imposed by the federal Constitution itself—just like any other power conferred by the Constitution,” Moore’s lawyers wrote in a reply brief. “But it does not follow that States have the authority, through the adoption of their own constitutions, to trump the federal Constitution’s delegation of authority to each states’ legislature rather than their courts.”

That logic presents a problem: State legislatures, which exist as a result of state constitutions, may not actually be bound by those constitutions when it comes to administering federal elections.

Harper’s side will likely argue that the independent state legislature theory is not rooted in history and precedent.

In a brief, the state respondents to the case said they “do not dispute that the Elections Clause reserves a central role for state legislatures, as defined by their state constitutions, in regulating congressional elections. … But the Elections Clause does not convert state legislatures into unaccountable sovereigns either.”

Experts across the ideological spectrum have submitted amici briefs in the case, and many are concerned about how a decision in Moore’s favor would disrupt the status quo.

Thousands of court decisions, laws, and regulations could be at risk if the court sides with Moore, a brief from the Brennan Center for Justice at NYU argues. That includes ranked-choice voting in Alaska and Maine, which were implemented by direct democratic votes rather than legislative decisions.

Richard Hasen, a professor at UCLA, wrote in his brief that if the Supreme Court sides with Moore and embraces the independent state legislature theory, it “will be asked to consider an ever-increasing number of time-sensitive, election-related motions on its emergency docket,” potentially dragging the court further into more partisan disputes.

Longtime Republican election lawyer Ben Ginsberg—who submitted his own brief—also expressed concerns. “Make no mistake about it: adoption of a full-throated independent state legislature doctrine would set on its head 230 years of the way we’ve been doing business, and that is no small matter,” he told reporters Tuesday. He added that he was “doubtful” the court would actually fully embrace the theory.

Ginsberg emphasized that the case shouldn’t be seen as a binary choice between the status quo and a radical future, pointing to an October Atlantic article by former federal judge Michael McConnell and law professor Will Baude as an example of a strong argument for a “commonsense middle ground” in the case.

“One side asks for state legislatures to be freed from the traditional safeguards of state constitutional law, while the other asks the Court to effectively ignore the text of the Constitution,” Baude and McConnell wrote. “The Court should look beyond these unsupportable positions.”