On December 7, 2022, the Supreme Court heard oral arguments on Moore v Harper. At stake are some of the fundamentals of democracy in the United States, voting rights. A decision most likely will be released in June or July 2023, prior to the 2024 Presidential Election.
This Brennen Center article explains the evolution of the North Carolina case about the legality of gerrymandered congressional maps that violate that State’s Constitution. The argument is based on independent state legislature theory (ISLT) which gives all power to state legislatures to exclusively set the rules for federal elections. State courts would NOT be able to strike down any rules that the legislature sets, even if the rules conflict with the state constitution. Permitting this theory to go forward would give state legislatures enormous power over a range of issues, including partisan gerrymandering, early and mail-in voting rules, voter ID measures and felon disfranchisement and disrupt the balance of power between the three branches of government. A version of this theory was promoted by allies of former President Donald Trump during their attempts to overturn the 2020 presidential election.
Interestingly, 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 and the Republican legislature appealed to SCOTUS.
ACLU has a concise summary of the case.
If the SCOTUS decision backs this theory, state lawmakers would be able to adopt voter suppression legislation without any checks or balances from state courts or even a gubernatorial veto. In other words, the theory would upend key aspects of US elections.
The Guardian explains that this could put more than 200 provisions in state constitutions dealing with voting at risk, including the language that explicitly grants the right to vote and the ability to vote with a secret ballot, according to a report by RepresentUs, a government watchdog group. Delegations of authority would also be questionable, robbing elections commissions and secretaries of state of the power to make decisions, including in emergencies.
J Michael Luttig, a well-respected, retired conservative federal judge has stated that the ISLT doctrine is “antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution” and is a part of the “Republican blueprint to steal the 2024 election.” Luttig, recently signed on as co-counsel for litigants opposing the theory.
Although the Court has not explained why it decided to take this case, in March when the Supreme Court denied emergency relief to the gerrymanderers, 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.
Post argument analysis
Even after more than three hours of arguments, the Verdict explains that the arguments didn’t generate a clear consensus among analysts about how a majority of the Court is likely to rule. Many commentators are suggesting that there appears to be a majority (Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and quite possibly Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett) who, because of powerful originalist and precedent-based arguments, reject the basic premise of ISLT. However, the final decision might provide some compromise.
Experts warn that embracing this theory would be undemocratic and dramatically refashion US election law and upend the separation of powers at the heart of American government.