on Dec 6, 2022
at 10:20 am
The North Carolina state legislative building in Raleigh. In Moore v. Harper, Republican leaders of the state legislature are pushing for broad power to run federal elections. (Nagel Photography via Shutterstock)
The Supreme Court will hear oral argument on Wednesday in a case that UCLA law professor Richard Hasen has called the “800-pound gorilla” of election law. The case, Moore v. Harper, is a test of the “independent state legislature” theory – the idea that the Constitution gives state legislatures nearly unfettered authority to regulate federal elections, with little to no interference from state courts. Depending on whether the justices agree with the theory and how broadly they interpret it, it has the potential to upend federal elections by eliminating virtually all oversight of those elections by state courts.
The independent state legislature theory rests on two provisions of the Constitution. The provision directly at issue in Moore, Article I’s elections clause, says that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Similarly, Article II’s electors clause says that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.” Proponents of the theory argue that, under the plain text of those two clauses, state courts are not authorized to supervise how state legislatures run elections for Congress or the president. Critics argue that neither clause was ever understood – including at the time of the Founding — to confer such unchecked authority on state legislatures.
The Supreme Court has never endorsed the independent state legislature theory in a majority opinion. But the theory made an appearance in a concurring opinion by then-Chief Justice William Rehnquist in Bush v. Gore, the case that halted the recount in Florida in the 2000 presidential election. In an opinion joined by Justices Antonin Scalia and Clarence Thomas, Rehnquist set out his view that the state court’s recount conflicted with the deadlines set by the state legislature and thus violated the legislature’s authority under the Article II electors clause.
And in 2020, the Supreme Court turned down a request by Pennsylvania Republicans to fast-track their challenge to a ruling by the Pennsylvania Supreme Court that, relying on the state constitution, extended the deadline for absentee ballots in the general election. In an opinion that accompanied the court’s order, Justice Samuel Alito (joined by Thomas and Justice Neil Gorsuch) suggested that the state supreme court’s decision to extend the deadline for counting ballots likely violated the Article I elections clause.
Moore began as a challenge in state court to a new congressional map adopted by North Carolina’s Republican-controlled legislature in early November 2021. Democratic voters and non-profits argued that the map violated the state’s constitution because it was a partisan gerrymander – that is, drawn to favor one political party at another’s expense. Specifically, they said, although the state is roughly divided between Democrats, Republicans, and unaffiliated voters, the new map likely would have given Republicans 10 of the state’s 14 seats in the U.S. House of Representatives.
In February, the North Carolina Supreme Court (which had a 4-3 Democratic majority) ruled along partisan lines that the new map violated a provision in the state constitution that guarantees free elections. It noted that the trial court had concluded that the new map was an “egregious and intentional” partisan gerrymander, “designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.” The state supreme court blocked the state from using the map in the 2022 elections and ordered the trial court to either approve or adopt a new map before the end of the month. The trial court then adopted a new map, drawn by three experts appointed by the court.
In March, a divided Supreme Court turned down a request from Republican legislators to put the new court-adopted map on hold and reinstate the legislature’s original map. In June, however, it agreed to hear oral argument in the case. The court-adopted map was in effect for last month’s midterm elections, in which Republicans and Democrats split the state’s congressional seats 7-7.
In their brief on the merits, the Republican legislators – led by Timothy Moore, the speaker of the state’s house of representatives – tell the justices that the question before them can be resolved based on the text of the Constitution. In the elections clause, they argue, the use of the phrase “the Legislature” means that only the legislature has the power to regulate elections, with no role for state courts.
If the drafters of the Constitution had wanted to permit other entities, the legislators continue, such as state courts, to play a role in regulating federal elections, they could have said so – for example, by giving power to “each State.” But, they stress, the drafters declined to use that language, and they claim – citing a historical document known as the “Pinckney Plan” — that “each State” was in fact how the clause was written in an early draft of the Constitution. (The legislators’ opponents, with the backing of many historians, dismiss the Pinckney Plan as “utterly discredited,” noting that it was added to the historical record 30 years after the Constitutional Convention.)
The legislators maintain that their interpretation is also supported by the history of the elections clause. During the country’s first few decades, they write, it was “virtually unheard of” for a state court to strike down a congressional map based on a provision in the state constitution, because the overwhelming majority of the states – 21 out of 24 – did not have any provisions that would have allowed state courts to step in.
Defending the state supreme court’s ruling, North Carolina (which has a Democratic governor and attorney general) criticizes the legislators’ interpretation of the elections clause as “extreme and dangerous.” The legislature, it stresses, has “never before claimed the power that its current leaders assert here: the power to prescribe federal-election regulations that violate the State’s constitution and are immune from judicial review.”
North Carolina and the original challengers to the Republican map offer a different interpretation of the text of the elections clause. Although a “legislature” is the representative body that makes the laws, they explain, when the U.S. Constitution was drafted it was also “universally understood” that the state legislature was created by the state constitution. Therefore, they say, the laws that the legislature passes – including election laws – must comply with the state constitution, and state courts can step in to enforce the limits imposed by the state constitution.
Like the legislators, North Carolina and the challengers insist that history supports their understanding of the elections clause. In the 25 years after the Constitution was ratified, they note, virtually all of the states that adopted or amended their constitutions directly regulated federal elections in some way.
The Supreme Court’s cases are also contrary to the legislators’ theory, North Carolina and the challengers tell the justices, making clear that state courts had the authority to consider the challengers’ gerrymandering claims. In its 1932 decision in Smiley v. Holm, the Supreme Court upheld the Minnesota governor’s veto of a congressional map enacted by the state legislature. Reversing the Minnesota Supreme Court’s holding that the elections clause gave sole power over redistricting to the legislature, the court reasoned that even when acting under the elections clause, a state legislature must still comply with restrictions imposed by its state constitution.
The Supreme Court echoed this principle in 2015, the state and the challengers continue, in Arizona State Legislature v. Arizona Independent Redistricting Commission. In that case, the court rejected a challenge to the state’s creation, through a referendum that amended its constitution, of an independent redistricting commission. Nothing in the elections clause or the Supreme Court’s cases, Justice Ruth Bader Ginsburg wrote, indicates that state legislatures can regulate federal elections in ways that are contrary to the state’s constitution.
And in Rucho v. Common Cause, a 2019 challenge to an earlier version of North Carolina’s congressional map, a divided Supreme Court ruled that federal courts cannot review claims of partisan gerrymandering. At the same time, the state and the challengers note, the court acknowledged that state constitutional provisions “can provide standards and guidance for state courts to apply” in partisan gerrymandering cases.
The state and the challengers add that it is “inconceivable” that anyone would have understood the U.S. Constitution, when it was drafted, to bar state legislatures from giving state courts the power to enforce state constitutions. And that is precisely what the North Carolina legislature has done here, the state and challengers contend. Laws enacted by the legislature outline a scheme to govern challenges to redistricting maps; that scheme gives state courts the power to review congressional maps to make sure that they comply with the state constitution – and, if necessary, to provide a remedy for the state constitutional violation.
The legislators counter that even if a legislature generally could delegate power to regulate congressional elections to state courts, the North Carolina legislature did not do so here. As an initial matter, they assert, no legislature can delegate the kind of power at issue in this case – deciding how strong a role partisanship can play in redistricting, which is an “unmoored policy determination.” But in any event, they say, the state-law provisions on which the challengers and the state rely do not delegate power to the state court.
Finally, North Carolina and the challengers caution that a ruling for the legislators would “wreak havoc on election administration nationwide.” Elections are complicated to organize and run, they stress, and as a result states – like North Carolina – delegate the authority to set rules for federal elections to election officials. But if the legislators prevail, they suggest, the legislature would have to make all election rules, on topics ranging from the location of polling places to polling hours in an emergency. The legislature’s theory also raises the possibility that, if a state court invalidates an election law as a violation of the state constitution, that decision would apply only to state elections, but not to federal elections. As a result, North Carolina and the challengers posit, election officials may conclude that their only choice is to conduct two separate elections using the two different sets of rules.
Wednesday’s argument comes less than one month after the midterm elections changed the political landscape in North Carolina. While Democrats made gains in the state’s congressional delegation, Republicans now control a majority on the North Carolina Supreme Court, creating the possibility that – regardless of the outcome of the case – the state supreme court would green-light a map drawn to favor Republicans.
And although it is the Republican-controlled legislature asking the Supreme Court to recognize a theory of near-complete power for state legislatures over federal elections, Princeton University professor Sam Wang suggests that a ruling for the legislature in this case would likely benefit Democrats more. Blue and swing states, Wang explains, have been more likely to check partisan gerrymandering through a governor’s veto, the state courts, or independent redistricting commissions. A decision in favor of the legislature, Wang says, would allow those blue and swing states to draw new maps that are more favorable to Democrats. The 19 states where Republicans already control redistricting have less to gain from the Supreme Court’s ruling, Wang concludes, because those states have already drawn maps to benefit Republicans.
This article was originally published at Howe on the Court.