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It's Hard to Overstate the Danger of the Voting Case the Supreme Court Just Agreed to Hear
The Supreme Court on Thursday agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion in congressional and presidential elections.
The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution—Article I, Section 4 as to congressional elections and Article II as to presidential elections—give state “legislatures” the power to set certain rules (in the Article I, Section 4 context, subject to congressional override). In cases such as Smiley v. Holm, the Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. As recently as 2015, in Arizona Independent Redistricting Commission v. Arizona Legislature, the Supreme Court held that the 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.
The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution—Article I, Section 4 as to congressional elections and Article II as to presidential elections—give state “legislatures” the power to set certain rules (in the Article I, Section 4 context, subject to congressional override). In cases such as Smiley v. Holm, the Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. As recently as 2015, in Arizona Independent Redistricting Commission v. Arizona Legislature, the Supreme Court held that the 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.
There’s a more radical version of the idea that the legislature has power, standing on its own as a body and not part of the general structure of state government, in the independent state legislature theory.
Take the facts of the Moore case. The North Carolina Supreme Court, interpreting a provision of the state constitution protecting the right to vote, held that partisan gerrymandering violated the state constitution and required drawing fairer lines, including in congressional districts. That state court is majority Democrat, and the North Carolina General Assembly is majority Republican. The Republican legislature argued that this holding usurped its sole and plenary power to choose the manner for drawing congressional districts.
Pause on that for a moment: The theory in this extreme form is that the state constitution as interpreted by the state supreme court is not a limit on legislative power. This position would essentially neuter the development of any laws protecting voters more broadly than the federal Constitution based on voting rights provisions in state constitutions. It also goes against what Roberts wrote for the conservative majority of the court as recently as in the 2019 redistricting case Rucho v. Common Cause, when he explicitly said that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” regarding redistricting. As Roberts wrote, the courts have a role to play in redistricting fights:
A state supreme court—albeit a Democratic-controlled one—making a judgment about what a state constitution allows in terms of redistricting is also what happened in North Carolina. Of course, the composition of the Supreme Court has changed in the intervening years since Rucho.
What’s worse, this theory might not just restrain state supreme courts; it can also potentially restrain state and local agencies and governors implementing rules for running elections.
Take the facts of the Moore case. The North Carolina Supreme Court, interpreting a provision of the state constitution protecting the right to vote, held that partisan gerrymandering violated the state constitution and required drawing fairer lines, including in congressional districts. That state court is majority Democrat, and the North Carolina General Assembly is majority Republican. The Republican legislature argued that this holding usurped its sole and plenary power to choose the manner for drawing congressional districts.
Pause on that for a moment: The theory in this extreme form is that the state constitution as interpreted by the state supreme court is not a limit on legislative power. This position would essentially neuter the development of any laws protecting voters more broadly than the federal Constitution based on voting rights provisions in state constitutions. It also goes against what Roberts wrote for the conservative majority of the court as recently as in the 2019 redistricting case Rucho v. Common Cause, when he explicitly said that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” regarding redistricting. As Roberts wrote, the courts have a role to play in redistricting fights:
Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution.
A state supreme court—albeit a Democratic-controlled one—making a judgment about what a state constitution allows in terms of redistricting is also what happened in North Carolina. Of course, the composition of the Supreme Court has changed in the intervening years since Rucho.
What’s worse, this theory might not just restrain state supreme courts; it can also potentially restrain state and local agencies and governors implementing rules for running elections.
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