The Supreme Court is poised to decide before it breaks for the summer whether to hear Moore v. Harper, a case raising the question whether the North Carolina Supreme Court had the power to rein in the North Carolina General Assembly’s partisan gerrymander of the state’s congressional districts. Opponents of the lawsuit asked to delay filing their opposition until June 20, but the Supreme Court required that briefs be filed by May 20, and they have been. That gives enough time for the Court to decide before the expected end of the term in June or early July whether to hear the case next term. It’s a case with potentially enormous implications for the 2024 elections and beyond.
As issue is the viability of the “independent state legislature theory.” As I explained in this Slate piece, when North Carolina Republicans sought emergency relief in the Supreme Court in this case, this suit “if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections.” Further:
The Supreme Court accepting North Carolina’s argument would lead to some horrible consequences. First, it would neuter state courts’ abilities to rein in partisan gerrymandering, further undermining democratic representation. Second, the Supreme Court would be acting in a way that could tip control of Congress to Republicans.
But most importantly, siding with North Carolina could profoundly alter the balance of power between state courts and state legislatures. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights. This would apply not only to redistricting but to laws restricting registration and voting practices. It would allow hostile legislature to run roughshod over legislative rights. It could lead to major voter suppression policed by neither state courts nor federal courts, given the Supreme Court’s shrinking of the federal Voting Rights Act’s protections.
There are some good reasons for the Supreme Court not to take this case, not the least of which is that the state legislature seems to have empowered the state courts to review redistricting decisions, meaning there would be no violation of the legislature’s “power” even if such power exists.
But four Justices expressed interest in this theory when the Court denied a stay in this case, and former Judge Luttig believes the Court is going to have to resolve this issue sooner rather than later:
Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.
But there are dangers on the horizon in this case or another one. As I’ve written about Justice Alito’s dissent from a stay in this case:
If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts’ dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito’s position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There’s a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.
Further, as I wrote in the Harvard Law Review Forum, some of the more extreme forms of the doctrine could facilitate election subversion in 2024 with state legislatures appointing slates of electors that would negate the choices of voters for President. Keep your eye on this.