Do As They Please? Moore V. Harper asks SCOTUS To Declare Who Has the Final Word


It looks pretty simple: Now that the Supreme Court justices have heard oral arguments in Moore v Harper, the monumental case regarding legislatures’ roles in setting voting rules, the justices must decide whether or not to make a liar out of Chief Justice John Roberts and to take yet another crowbar to American democracy. Here’s what’s at stake.

In an editorial arguing that the Court should never have taken MooreThe New York Times quotes a former appeals court judge who calls the case, “the most important case for American democracy in the nation’s history.”

A lot of people discuss the case and the issue it raises in such apocalyptic terms. “‘Incredibly disruptive.’ ‘Wreaking ‘havoc.’ ‘Potentially damaging for American democracy.’ Those are just some of the characterizations of a legal theory that is at the center of” Moore, MSN reported before the oral argument. 

In a recent New York Times op-ed, North Carolina Gov. Roy Cooper wrote that “[t]he court’s decision on this alarming argument could fundamentally reshape American democracy. Four justices have suggested that they are sympathetic [to the theory of legislative supremacy for elections]. If the Court endorses this doctrine, it would give state legislatures sole power over voting laws, congressional redistricting, and potentially even the selection of presidential electors and the proper certification of election winners.”

Former U.S. Secretary of Labor Robert Reich has said, “Moore v. Harper could let extremist state legislatures disregard the popular vote and choose their preferred presidential candidate.” 

Describing the idea at the heart of Moore, the Times calls it “a political power grab in the guise of a legal theory.”

The wall between law and politics is a thin veneer — but a useful one. Needless to say, everyone at the oral argument on December 7 was well aware of the politics but stuck doggedly to discussing the legal issues, even if those discussions sometimes seemed testy. “It seems that every answer you give [serves to] get what you want,” Supreme Court Justice Sonia Sotomayor chided the petitioners’ lawyer, David Thompson, at the oral argument, “but it makes little sense.” 

We’ll soon see if it makes better sense to a majority of her colleagues.   

Moore v Harper is a North Carolina case about extreme partisan gerrymandering. But that isn’t really the issue. The legislature did the gerrymandering under which, in an evenly divided state, 10 of 14 Congressional districts would have been safely Republican.  The state supreme court ruled that the legislature had violated the North Carolina constitution, and sent the case back to a lower court, resulting in a non-partisan map.

Moore is the Republican speaker of the state house, hence his name on the Republicans’ suit.  They asked SCOTUS to stay the order to impose a new map – which the justices refused to consider, because the case came too close to the 2022 election. Next the GOP asked the Supreme Court to invalidate the state court’s ruling as unconstitutional.

Pertinent to the case is that face that three years ago, in a majority decision written by chief Justice John Roberts, SCOTUS said a state court ruling on federal election districts would be just fine. In that case, called Rucho  — which also involved extreme partisan gerrymandering in North Carolina — the five-member Supreme Court majority ruled that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”  In other words, gerrymandering was not “justiciable.” 

This evasion was not a high point for the Supreme Court.  In her dissent, Justice Elena Kagan wrote that  “[f]or the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation,” Kagan wrote. “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process.” 

The North Carolina supreme court was ruling in the shadow of Rucho, and it explicitly addressed points from Roberts’ opinion.  The state court ruled that “claims of partisan gerrymandering are justiciable under the North Carolina Constitution. Although the primary responsibility for redistricting is constitutionally delegated to the General Assembly, this is not a delegation of unlimited power; the exercise of this power is subject to restrictions imposed by other constitutional provisions, including the Declaration of Rights.”

In other words, the majority state justices were doing exactly what Roberts, in effect, invited them to do.  Will the SCOTUS majority now say that’s no longer OK, thus defying Roberts?

The ACLU, among dozens of organizations that filed amicus briefs in Moore, led off with Rucho.  “Three years ago,” the ACLU said, “in Rucho v. Common Cause, this [Supreme] Court invited state courts to apply state constitutional law to address the problem of partisan gerrymandering.  . . . The North Carolina Republican legislators whose map was found to violate the North Carolina Constitution now ask the Court to rescind its invitation.”

Roy Cooper, who is North Carolina’s governor and also its former attorney general, has written that “[r]etreating from that [Rucho] position on the role of state courts would be a shocking leap backward that would undermine the checks and balances established in state constitutions across the country.”

And Rucho isn’t the only SCOTUS decision that says the elections clause doesn’t bar state courts from reining in state legislatures. That ruling said, “[n]othing in [the Elections Clause] instructs, nor has this Court ever held, that a state legislature may [regulate] the . . . manner of holding federal elections in defiance of provisions of the State’s constitution.”  

But the conservative Federalist Society had already grown attached to the idea that state legislators could do as they pleased, without worrying about their state’s constitution or courts.  The reasoning that lies at the heart of Moore dates back to former Chief Justice William Rehnquist’s three-person concurrence in Bush v. Gore, the case in which the Court overturned the Florida supreme court’s order for a manual recount and basically threw the 2000 presidential election to George W. Bush. 

This much-reviled election ruling has become a kind of zombie decision. The Court seemed to say it was a one-off and shouldn’t be used as a precedent — “Our consideration is limited to the present circumstances. . . ” —  but there it still is.  Or rather, there is Rehnquist’s concurrence in broader discussions of a theory known as the Independent State Legislature or ISL.

The  U.S. Constitution’s Elections Clause says that state legislatures decide the time, place, and manner of federal elections.  ISL believers say this means exactly what it says: legislatures decide, and it’s nobody else’s business.  Congress could second-guess a legislature’s decision — and, it seems, a governor could veto it —  but a state constitution and a state supreme court are irrelevant.

But what is a “legislature?”  The answer is less obvious than it seems.  And this conundrum took up a fair bit of time and intellectual space in the oral argument.  “When we think about this word ‘legislature,'” Justice Elena Kagan said, “we’re thinking about it as embedded in a system of restraints. . . . One of those restraints is the governor and another of those restraints is the courts.”

“I don’t understand . . . how you can take the state constitution out of the equation,” said Justice Ketanji Brown Jackson, “when it is giving the state legislature the authority to execute legislative power.”  

“[T]here’s no such thing as an independent state legislature,” Neal Katyal argued for the private respondents (i.e., those not affiliated with the state.)  “Petitioners’ idea that state legislatures created by state constitutions are independent of them is wrong. It is rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice, especially New York, where judges vetoed federal election bills. It’s also rejected by this Court.” The petitioners, Katyal said, “claim the word ‘legislature’ means [a kind of entity] that has never existed.”

The authority to legislate “comes from the state constitution, no?” Justice Jackson pointedly asked David Thompson.

“No,” he replied, “this is a federal duty.”  

“Yes, it’s a duty,” Jackson said, but “where does the [legislature’s] power come from to make any determination at all?”

The petitioners were basically asking the court to expand the Rucho argument that federal courts couldn’t deal with gerrymandering to the state courts — despite Roberts’ explicit assurance that state courts could do just that.  Rucho talked about a lack of clear standards. David Thompson argued  that there were no clear constitutional standards for state courts to apply, either.  Justice Sotomayor suggested that a constitutional right without written constitutional standards was kind of like a lot of other rights we value, including freedom of speech, freedom of assembly, and the right  to equal protection.

The petitioners claimed that “the word ‘legislature’ means [a kind of entity] that has literally never existed,” Katyal said. “State law-making unconstrained by a state constitution, if the founders intended to create that animal, surely someone would have said something.”

Indeed. But the idea of an unconstrained legislature has had fans throughout this century.  Since the days of Bush v. Gore, the Federalist Society has kept the idea alive, as Vikram David Amar of the University of Illinois law school and Akhil Reed Amar of Yale have written.  Four of the current justices have expressed sympathy for the idea. The Amars note that in 2019, Kavanaugh cited Rehnquist’s BUSH V GORE concurrence in a footnote, and three days later, they write, “Justice Alito, joined by Justices Thomas and Gorsuch (but not, notably, by Justice Kavanaugh) condemned the Pennsylvania Supreme Court and urged his colleagues to leap onstage, in a re-enactment of Bush v. Gore. Justice Alito’s embrace of the Bush three’s  . . ISL theory was emphatic and unrepentant.” 

Thomas was part of Rehnquist’s three-judge concurrence on Bush v. Gore. When Moore and North Carolina Republicans petitioned unsuccessfully for a stay earlier this year, Thomas joined Alito and Gorsuch in a dissent that argued the question was important, would keep coming back, and should be heard.  Kavanaugh said much the same in his own dissent to hearing the case. Alito said, “In my view, the applicants have shown that the question presented by this case easily satisfies our usual criteria for certiorari . . . and it is also likely that they would prevail on the merits if review were granted.”

It’s too early to say that the underlying theory will prevail. Justice Amy Coney Barrett has not jumped on the ISL bandwagon. Roberts has not recanted his Rucho language. Accordingly, the conservatives may fall short of a majority.

As they should fall short. Would the Founders have bought the Independent State Legislature theory? You’ve gotta be kidding.  Legislative power unchecked by a constitution wasn’t their thing.  But now, who knows? 


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