Laurie Woodward Garcia demonstrates outside of the United States Supreme Court as the justices hear oral arguments in Moore v Harper, a Republican-backed appeal to curb judicial oversight of elections, in Washington, DC, 7 December 2022. REUTERS/Evelyn Hockstein.

The US Supreme Court case Moore v Harper will have major implications for the pernicious issue of gerrymandering, which increasingly distorts US elections.

There’s a line from the hit Broadway play ‘Hamilton’ that captures both the inventiveness and desperation of the American constitutional system. ‘When my prayers to God were met with indifference, I picked up a pen, I wrote my own deliverance’, Alexander Hamilton sings. So too it is with the ‘independent state legislature theory’, a fringe concept in United States constitutional law.

Republicans are currently trying to write the theory into law in a naked bid to block state courts from disciplining the more partisan aggressions of their state legislators.

The theory lies at the heart of a pending US Supreme Court case, Moore v Harper, that threatens to upend how US elections are governed. If the Supreme Court were to accept it, ‘the blast radius […] would sow elections chaos’, Neal Katyal, a lawyer representing voters and pro-democracy advocacy groups, said in oral argument before the nine US Supreme Court justices on 7 December 2022. ‘You would have to ignore the text, history and structure of our federal Constitution as well as nearly every state constitution today’, Katyal said.

North Carolina as a microcosm

Arising as it does in the troubled ferment of American politics today, in which allies of former President Donald Trump continue to deny the outcome of the 2020 election, the potential consequences are explosive.

The case comes out of the US state of North Carolina, a microcosm of politics in America. One of the original 13 British colonies that declared independence in 1776, North Carolina runs 500 miles west from the Atlantic Ocean across rural farm country to the Appalachian Mountains. It includes Charlotte, one the fastest growing cities in the US, and Raleigh-Durham, a university hub and high-tech centre. It’s a hotbed of partisan contests between Republicans and Democrats that have spilled into state and federal courts for decades.

Following the US census in 2020, North Carolina gained another seat in the US House of Representatives – the lower chamber of the Congress – and its Republican-controlled legislature proposed voting districts tilted in favour of Republicans. Both parties in the US engage in the practice of manipulating district boundaries for partisan advantage, ‘gerrymandering’. With computer mapping and data science tools, this can be executed with precision.

The map, intended to apply to the 2022 election, would have given ten of 14 House seats to Republicans, even though the state’s electorate was more evenly divided. Republicans made up 50 per cent of the state’s voters, and Democrats 48.6 per cent in 2020. North Carolina voters sued, with backing from national Democrats, and a 4–3 majority on the North Carolina state Supreme Court struck down the map as ‘an egregious and intentional partisan gerrymander’. 

The court found the maps violated provisions in the North Carolina constitution guaranteeing the right to free elections, freedom of speech, equal protection and freedom of assembly. But the justices who made up the majority were Democrats and Chief Justice Paul Newby, a Republican, dissented, calling the decision an ‘unprecedented expansion of judicial power’. The court’s decision had violated ‘separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution’, Newby argued.

North Carolina legislators appealed to the US Supreme Court, arguing the US Constitution vests sole authority to regulate federal elections with the state legislature and does not grant state courts authority to reverse. Indeed, the ‘Elections Clause’ reads: ‘The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ’.

Advocates for this independent state legislature theory invoke Hamilton’s writings, The Federalist Papers, which are a set of essays written in 1787–88 by America’s founders to explain and promote ratification of the Constitution. ‘The Elections Clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections’, lawyer David H Thompson, representing the North Carolina legislators, told justices in oral argument on 7 December.

The limits of authority

‘States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function’, Thompson said. ‘The founders tasked state legislatures with federal functions that transcend any substantive limitation sought to be imposed by the people of the state’, he added. These are bold and novel claims.

A nascent version of the independent legislature theory can be found in a concurring opinion by former Chief Justice William Rehnquist in Bush v Gore, the landmark case that decided the 2000 presidential election. Rehnquist argued the Florida Supreme Court had exceeded its jurisdiction in ordering a recount of disputed punch-card ballots. But that was an exception. ‘In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law’, Rehnquist caveated.

Across all 50 US states, there are dozens of state constitutional provisions, hundreds of statutes and literally thousands of regulatory policies governing elections. Rules governing absentee ballots, automatic voter registration, same-day voting, polling locations and hours, drop boxes and even the right to vote are at risk. Importantly, however, the justices’ questions and commentary during oral argument – which ran relatively long at nearly three hours – signalled the court was not wholly receptive to North Carolina’s inventive theory.

‘The position that's more realistically in play at this point is some version of the notion that state courts cannot depart too far from the text of their state constitutions in constraining state legislatures in their role as regulators of national elections’, Pildes said.

During oral argument, conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch appeared to be receptive to the independent state legislature argument. But other justices among the court’s conservative majority appeared sceptical.

Chief Justice John Roberts questioned whether a governor’s veto doesn’t provide ‘a pretty significant exception’ that ‘undermines the argument’.

Justice Brett Kavanaugh inquired whether the North Carolina legislature’s position allowed a role for state courts interpreting state law, with federal judicial review, so long as they did not ‘significantly’ depart from state law and drew on ‘a body of precedent’ – a version closer to Rehnquist.

Seeking to answer the justices’ questions and concerns, North Carolina’s lawyer Thompson drew a distinction between ‘substantive’ versus ‘procedural’ constraints that state courts impose on the legislature. When it comes to federal elections, state constitutions and courts can impose procedural requirements but not substantive ones, he argued.

Justice Amy Coney Barrett, the sixth conservative on the court, pointed out that Thompson had ‘a problem with explaining why’ procedural limits are okay, but substantive ones are not.

The court’s three liberal justices were openly hostile to North Carolina’s case. Justice Sonia Sotomayor suggested Thompson was attempting to ‘re-write history’ and called his substantive-procedural distinction ‘a logical morass that the Court is loath to enter’.

Justice Elena Kagan noted the court’s precedents have ‘never held that a state legislature may prescribe regulations […] in defiance of provisions of the state’s constitution’.

Justice Ketanji Brown Jackson, the court’s newest member, posited simply that the state legislatures draw authority from state constitutions in the first place and are thus subject to their restraints – a proposition supported by Hamilton.

A decision from the court is expected in June or July. Depending on how Justices Roberts, Kavanaugh and Barrett come down, the court may recognise the independent legislature theory as too extreme. A middle ground might be found in adoption of an alternative notion of federal judicial review.

‘If the court issues a really deferential standard, clearly explains it, makes clear that it is supposed to be used in only the rarest of circumstances, and faithfully applies it in this case and others, then the damage of this case may be limited’, says Tom Wolf, Deputy Director of the democracy programme at the Brennan Center for Justice. ‘There's a risk, though, that the court could adopt a relatively undeferential standard that empowers it to second guess basically any state court decision it wants.’

Even a partial acceptance of the independent legislature theory in the era of Trump’s ‘Big Lie’ is likely to lead to more litigation in federal courts relating to federal elections and state laws.

Bill Roberts is a US-based journalist and can be contacted at wroberts3@me.com