The U.S. Supreme Court will hear the case of Moore v. Harper in late 2022, with a decision expected about a year from now in the summer of 2023. The case is being pursued by Republicans in the North Carolina General Assembly that argue the North Carolina State Supreme Court’s Democrat majority violated the state
The question presented by the General Assembly to the U.S. Supreme Court
Independent State Legislature Doctrine
State legislative leaders filed a petition
On March 7, Justice Brett Kavanaugh indicated that he agreed with dissenting Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas that the court should address the issue of state courts’ role in addressing state legislatures’ decisions about redistricting.
It takes “yes” votes from four of the nine justices for the U.S. Supreme Court to agree to hear a case.
The case will pursue a legal theory called “independent state legislature doctrine,” which suggests that, under the Constitution’s election clause, “only the legislature has the power to regulate federal elections, without interference from state courts.”
This argument is based on two clauses in the Constitution that assign to the legislature of each state the job of identifying the “Manner” of appointing presidential electors and the “Times, Places and Manner” of congressional elections.
In Smiley v. Holm, the Supreme Court defined the use of the term legislature to mean the state’s legislative process, including a governor’s signature or veto override. In Arizona Independent Redistricting Commission v. Arizona Legislature, the high court held in 2015 that voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. The majority saw voters passing legislation via initiative as part of that legislative process.
However, the North Carolina General Assembly and at least some of the conservative members of the General Assembly see the issues differently.
As explained in the filing, seeking a writ of certiorari to review the judgment of the North Carolina Supreme Court, the General Assembly wrote:
“The Constitution directs that the manner of federal elections shall “be prescribed in each State by the Legislature thereof.” U.S. CONST. art. I, § 4, cl. 1. “The Constitution provides that state legislatures”—not “state judges”— “bear primary responsibility for setting election rules,” including the rules establishing the shape of congressional districts.
As this Court recently explained, “[t]he Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.”
Yet in the decision below, the North Carolina Supreme Court decreed that the 2022 election and all upcoming congressional elections in North Carolina were not to be held in the “Manner” “prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, but rather in the manner prescribed by the state’s judicial branch.”
Justice Neil Gorsuch wrote in a 2020 concurring opinion in a case concerning the deadline for casting mail-in ballots in Wisconsin, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
Four justices — Gorsuch, plus Clarence Thomas, Samuel Alito, and Brett Kavanaugh — have all endorsed some version of this independent state legislature doctrine. Meanwhile, four other justices, the three liberal justices plus Chief Justice John Roberts, have signaled that they will not overrule the Court’s many precedents rejecting this doctrine.
Vox opined the deciding vote on the case could be in the hands of Justice Amy Coney Barrett.
What the Constitution says:
Article I, Section 4, Clause 1:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.
Article II, Section 2, Clause 2:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
What the case is not about
As NYU Constitutional Law Professor Richard Pildes wrote about the limits of the Independent State Legislature doctrine when it comes to deciding Presidential elections:
Even if the Court endorses the doctrine, it would not mean state legislatures could choose to ignore the popular vote in their state and appoint presidential electors themselves. The Constitution in Art. II expressly gives Congress the power to determine the time at which electors must be chosen. Since the Presidential Election Day Act of 1845, Congress has set a nationally uniform day for the presidential election. If a state chooses to use an election for choosing the presidential electors, that election must be on the day Congress has proscribed [Update: if a legislature were to revert to the early 19th-century practice of appointing the electors itself, a highly unlikely prospect, the legislature would have to do this on election day as well]. Electors cannot be chosen after that day.”
Given Congress’ clear constitutional power to determine the timing of the election, state legislatures would still not have the power to ignore the popular vote and decide to appoint electors after election day. The independent state legislature doctrine, if the Court decides to recognize it, would have no bearing on Congress’ power to lock in the date on which electors must be chosen.
The case does not represent a “grave threat” to democracy as declared by liberal media outlets such as Vox. Nor will it be “catastrophic” as indicated by the News & Observer/Charlotte Observer. Nor is the News & Observer/Charlotte Observer correct in saying “this Supreme Court case might be more than an erosion of democracy, it could blow it up altogether.”
As Richard L. Hasen, professor of law and political science at the University of California has written:
Now may be more limited ways of reading the ISL theory, such as to apply only when a state court or agency decision very strongly deviates from legislative language about how to run federal elections.
What would it mean
Supporters of the independent state legislature theory believe state legislatures have power to regulate federal elections, and their actions can’t be overruled by state courts. Actions taken by the legislature concerning federal elections would still be checked by federal courts and by Congress.
We contend that the case result will likely affect redistricting only but it is possible that the doctrine if fully and broadly accepted could mean that the legislature could adopt voter I.D., proof of citizenship requirements
We say “possible” but we find it highly unlikely the courts will present a ruling likely to result in states having two election ballots: one for federal races and the other for state and local races with different rules for each.
What it won’t do
The case could have important implications down the road but may have little impact on current Congressional redistricting in North Carolina. The horribly uncompetitive court-drawn congressional map will stay in place for this year. The GOP-controlled General Assembly (yes they will solidly be in control of both chambers next year) will redraw the districts for the 2024 elections and the GOP will likely win control of the State Supreme Court. The new GOP State Supreme Court will actually follow the text of the North Carolina Constitution that is silent on partisan map drawing. After a strong review by the State Supreme Court, GOP-drawn districts that give the GOP a bigger political advantage will be approved.
The NC Supreme Court set this case up with gross overreach
The gross overreach by the Democrats on the State Supreme Court set this matter in motion. Remember the court found that the GOP violated
The court could not have created a case that demanded U.S. Supreme Court intervention more if they tried.
The court will find in favor of the GOP-controlled North Carolina General Assembly on a very limited basis.
The U.S. Supreme Court will find that the egregious conduct of the North Carolina State Supreme Court violated the Elections Clause of the Constitution by inventing provisions in the state constitution that don’t exist, throwing out the legislative redraw of the Congressional maps with little explanation as to why, and generally usurping the ability of the General Assembly to