Moore v. Harper, explained: How an NC redistricting case could have potentially disastrous consequences

This essay is republished from the website of the Brennan Center for Justice. For more information on this topic, check out the recording of last week’s NC Policy Watch Crucial Conversation (which featured another Brennan Center expert) by clicking here.

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 and only four to the Demo­crats. The map was a radical stat­ist­ical outlier more favor­able to Repub­lic­ans than 99.9999% of all possible maps.

Because the U.S. Supreme Court has ruled that federal courts cannot hear partisan gerry­man­der­ing cases, voters contested the map in state court, contend­ing that the map viol­ated the state consti­tu­tion’s “free elec­tions clause,” among other provi­sions. In Febru­ary 2022, the North Caro­lina Supreme Court agreed with the voters and struck down the map, describ­ing it as 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 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.

What has happened so far in the case?

The Supreme Court hasn’t made any substant­ive rulings yet. In March, the Court rejec­ted the legis­lat­ors’ emer­gency appeal to put the gerry­mander back in place imme­di­ately. At the urging of four justices, however, the legis­lat­ors filed a regu­lar appeal asking the Court to consider whether to rein­state their map for elec­tions after 2022. In June, the Court agreed to take up the case. The parties will file briefs over the summer and fall, with oral argu­ment happen­ing there­after. The Court will likely issue its decision before July 2023.

What are the gerry­man­der­ers arguing before the Supreme Court?

In urging the Supreme Court to rein­state the gerry­mandered congres­sional map, the North Caro­lina legis­lat­ors are rely­ing on an unten­able misread­ing of the Consti­tu­tion’s Elec­tions Clause known as the inde­pend­ent state legis­lature theory.

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 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 — voted to adopt state consti­tu­tions that regu­lated federal elec­tions, as North Caro­lin­a’s does today.

On top of this over­whelm­ing histor­ical evid­ence, the theory makes no sense: it would be absurd for a state legis­lature to be allowed to viol­ate the very state consti­tu­tion that created it. Other prob­lems doom the theory, as an avalanche of recent schol­ar­ship demon­strates. For these reas­ons, the Supreme Court has repeatedly rejec­ted the theory for over a century, includ­ing as recently as 2015 and 2019.

The Supreme Court could decide Moore without having to address the inde­pend­ent state legis­lature theory. As we have previ­ously explained, the North Caro­lina General Assembly itself enacted the state consti­tu­­tional provi­­sions that prohibit extreme partisan gerry­­­man­der­­ing and expressly author­­ized state courts to review and remedy unlaw­­ful congres­­sional maps. In other words, the state courts just did what the legis­lature told them to do.

Why did the Court take the case?

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” 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.

The poten­tial consequences could stretch still further. The theory would throw elec­tions into chaos, nulli­fy­ing hundreds of elec­tion rules put in place through ballot initi­at­ives, state consti­tu­tions, and admin­is­trat­ive regu­la­tions — includ­ing found­a­tional state policies like the processes for voter regis­tra­tion and mail voting and basic guar­an­tees like the secret ballot. State lawmakers would be able to adopt vote suppres­sion legis­la­tion without any checks or balances from state courts or even gubernat­orial veto. In other words, the theory would upend key aspects of our elec­tions.

Eliza Sweren-Becker serves as counsel in the Democracy Program at the Brennan Center for Justice. Ethan Herenstein is counsel with the Brennan Center’s Democracy Program’s Voting Rights and Elections team.