Supreme Court Rejects Independent State Legislature Doctrine in Moore v. Harper

Civil Rights Policy Brief #206 | By: Rodney A. Maggay | July 7, 2023

Photo taken from: npr.org

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Summary

On June 27, 2023, the United States Supreme Court handed down the decision in the Moore v. Harper case. At issue in the case is a redistricting map from North Carolina that was being challenged as an impermissible partisan gerrymander. But the heart of the case is a challenge to the Elections Clause found in Article I, § 4, clause 1 of the U.S. Constitution which requires the legislature of each state to prescribe the “[t]he Times, Places, and Manner of” federal elections.

After the 2020 decennial census, the North Carolina General Assembly proceeded to redraw its state congressional district map. The map was passed in November 2021 but immediately came under scrutiny by several voting groups and individual voters and a lawsuit was subsequently filed. The lawsuit alleged that the maps were drawn to favor and give an advantage to Republican candidates in the state while excluding Democratic candidates from being competitive in a number of districts. The trial court agreed but said that no relief could be had. An appeal was taken to the North Carolina Supreme Court. That Court reversed the trial court and declared that the maps drawn were impermissible partisan gerrymanders and that North Carolina state courts could issue relief to the plaintiffs. The Court then ordered a redrawing of the congressional district map. However, the legislative defendants again made a second appeal of the trial court’s remedial order ruling to the North Carolina Supreme Court. The Court then overruled it’s decision in the first appeal and held that partisan gerrymander cases could not be reviewed by North Carolina state courts and again ordered the North Carolina General Assembly to again redraw the state’s congressional district map. The case was then appealed to the United States Supreme Court to determine the question if state legislatures have the sole power to determine redistricting issues free from restrictions and limitations from state law and other branches of state government, e.g. review by a state court or veto from the Governor.

The Supreme Court eventually decided by a 6 – 3 vote that the Elections Clause does not give state legislatures the sole power to act under that clause and that the power wielded by state legislatures is subject to state constitutional limitations such as review by a state court and a veto by the Governor. LEARN MORE

Analysis

The Moore v. Harper case was an eagerly anticipated Supreme Court case because of the fringe legal doctrine at issue, the independent state legislature doctrine (ISLD), and the possibility that an adverse decision would plant the seeds for a chaotic 2024 election season.

In 2000, the Supreme Court decided Bush v. Gore. But in Chief Justice William Rhenquist’s concurring opinion he mentioned in passing that the Elections Clause granted to state legislatures authority over elections that could not be diminished or altered by state judges. It was easily overlooked but soon gained traction in Republican circles who interpreted the Elections Clause to mean that state legislatures had exclusive and near – absolute authority to regulate federal elections in their state. State legislatures would have a free hand and did not have to abide by any restrictions or limitations in regulating federal elections. Their actions would not be reviewable by a state court and a veto by the state’s Governor would be unenforceable.

Under this interpretation, there could be several different scenarios where the doctrine could be used to try and undermine a U.S. election. It was this theory that President Donald Trump and his allies relied on to try and overturn the results of the election in a number of states. Additionally, some state legislatures have tried to ban their extreme drawing of gerrymandered state district maps from review by state courts because they claimed that only the state legislature could decide what a state congressional map looked like. And the theory could also be used to rationalize the elimination of state independent redistricting commissions in a number of states as well as permit a state legislature from refusing to certify a properly conducted election based on flimsy legal arguments and other unwarranted excuses.

But the Supreme Court, surprisingly, rejected the theory outright. While some thought that the conservative majority on the Court would adopt the theory, Chief Justice Roberts, Justice Kavanaugh and Justice Barrett joined the three Liberal justices in rejecting the independent state legislature doctrine. They also brought numerous historical examples and Court precedents to show that that doctrine has never been accepted. Chief Justice Roberts cites historical evidence that the word “legislature” during the era of the Founding Fathers was not meant to refer to the legislative body only as we know it today but instead meant all of the branches of government together. This implies that sole power over elections was not meant to be held by the state legislature alone. And, his opinion cites cases that have rejected the legal theory. He cites Ohio v. ex. rel Davis v. Hildebrandt and Smiley v. Horn where a state legislature’s power under the Elections Clause was subject to a state referendum in the former case and where a Governor’s veto of a redistricting plan was proper in the latter case. What the historical evidence and the Court’s precedents demonstrate is that the independent state legislature doctrine has always been a failed legal doctrine, which the Court strongly emphasized. The conduct of free and fair elections in the U.S. can be subject to review or veto from the other branches of government.

An interesting side note is that the case may have been used Chief Justice Roberts to try and boost the current standing and reputation of the Supreme Court, which has flagged recently. Some believe that the conservative majority on the Court is merely rubber – stamping conservative policies instead of being unbiased when cases come before the Court. However, when it comes to the legitimacy of the Court, Chief Justice Roberts has been known to switch sides in order to save the Court from accusations of partisanship. In 2012, the Chief Justice famously sided with the liberals on the Court to save Obamacare and demonstrate that the Court can side with liberal policies even if they personally did not support it. The Chief Justice may have just done the same thing in this case to try and persuade a skeptical public that there is no partisan bias at the Supreme Court.

In the aftermath of what President Trump tried to do in attempting to steal the 2020 election and of what other Republican candidates and operatives have been trying to do to manipulate state legislatures to ignore the will of the people, this decision is the best decision at the most opportune time. The decision takes steps to ensure that elections will have the safeguards of their state constitutions and other branches of government while rejecting the independent state legislature doctrine once and for all. LEARN MORE

Engagement Resources

• Brennan Center for Justice – non-profit group’s explanation of the independent state legislature theory.
• Campaign Legal Center – non-profit’s group explanation of the independent state legislature theory.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.