Some believe the upcoming Moore case could decide the future of democracy
by Ian MacDougall for ProPublica
If the Republicans who brought the case, Moore v. Harper, prevail, state legislatures will effectively be free to override the votes of their citizens in presidential elections, the doomsayers predict. That might allow a future presidential candidate to undo an election, much as Donald Trump attempted, but failed, to do in 2020.
The Atlantic warned that the “Court’s right-wing supermajority is poised to let state lawmakers overturn voters’ choice in presidential elections.” The Guardian opined that a ruling in favor of the GOP would mean that “whether Republicans win or lose elections via the popular vote will not matter because they will be able to maintain power regardless.” And Slate called Moore v. Harper “the Supreme Court case that could upend democracy.”
Those fears are overblown. They ignore other legal protections that would prevent the theft of a presidential election. A state legislature can in fact choose which electors to pick, legal scholars generally agree, as those bodies routinely did in the early days of the republic. But a legislature has the power to decide to handle a vote that way only before citizens begin casting ballots in a given election.
“No matter what the Court decides” in Moore v. Harper, as New York University law professor Richard Pildes has put it, “it would still not mean state legislatures could choose simply to ignore the popular vote in their state and appoint presidential electors themselves after the election.”
Federal law, for example, requires states to choose their electors on Election Day. And several federal courts have held that after-the-fact changes raise questions of due process and equal protection. A state legislature can’t simply swoop in after the voting and rewrite the rules for a completed election because it didn’t like the outcome.
Still, Moore v. Harper has major implications for other aspects of elections, including gerrymandering. The case arises from a fight over redistricting by the Republicans who control both chambers of the North Carolina General Assembly.
This year, the state’s Supreme Court, voting in line with its 4-3 Democratic majority, ruled that the legislature’s congressional district map was a partisan gerrymander that violated the North Carolina Constitution. Ordinarily, that would be the end of the matter. Federal courts typically can’t second-guess a state court’s interpretation of its own laws.
But North Carolina’s Republican legislators found a way to get the case to friendlier terrain: the U.S. Supreme Court. They argued that the North Carolina court’s ruling violates the elections clause of the U.S. Constitution.
That clause states that the “Times, Places and Manner” of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” unless Congress overrides them. The North Carolina Republicans want the Supreme Court to bar state courts from interfering with state legislatures when it comes to congressional elections.
A ruling in their favor would effectively insulate partisan gerrymanders from legal challenges. It would also complicate how states administer elections and neutralize other parts of state constitutions that govern voting and elections, ranging from guarantees of ballot secrecy to automatic voter registration.
An examination of the case, and the way it traces its origins both to local political battles in North Carolina and to the legal contest that decided the 2000 presidential election between George Bush and Al Gore, reveals a lot about how the exigencies of a political moment can shape the law for decades.
There’s plenty of irony here. Republicans fought for years to keep federal courts from examining partisan gerrymanders. They won that fight in a 2019 case, Rucho v. Common Cause, which also originated in North Carolina.
Chief Justice John Roberts, writing for the conservative majority, declared that federal courts had no authority to review cases concerning partisan gerrymandering. But he went out of his way to note that alternatives remained: “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”
Democrats in swing states had already begun to do precisely what Roberts suggested: bring cases under state laws in state courts, many of which remain receptive to Democratic views.
That has caused a case of apparent buyer’s remorse for Republicans. Having previously persuaded the court to stay out, many of the same legislators who succeeded in the Rucho case are back at the high court, begging the justices — now a 6-3 conservative majority — to reinsert themselves into the fight.
It's further proof that victories don’t always deliver the expected results, a lesson that applies to both law and politics. Republicans, for example, spent years challenging campaign finance restrictions and triumphed in a line of cases starting with Citizens United v. Federal Election Commission in 2010, only to see Democratic fundraisers exploit those rulings and outspend them in recent elections. (Whether this gusher of money in politics has been good for the country is an entirely different question.)
A similar phenomenon could occur if the Republicans prevail in Moore v. Harper, at least when it comes to redistricting. Harvard law professor Nicholas Stephanopoulos ran a series of simulations recently that projected voting outcomes if each state could gerrymander at will.
He concluded that “nationwide, North Carolina is more the exception than the rule. Overall, Democrats would modestly benefit from a holding that state legislatures’ ability to draw congressional districts can’t be limited by state courts.” He projected that Democrats would net two to three congressional seats. If that turns out to be true, what’s good for North Carolina Republicans may not end up being good for all Republicans.
Many of the apocalyptic scenarios posited by Democrats trace their origins to the party’s calamitous Supreme Court defeat in Bush v. Gore in 2000. That case, not coincidentally, emerged from a state — Florida — where a Republican legislature was attempting to outmaneuver a state supreme court that was largely liberal.
The Florida Supreme Court had ruled that the state constitution authorized it to extend the deadline for county election boards to complete ballot recounts in that year’s presidential election, which turned on the whisper-thin margin in Florida. Democrats saw the ruling as the ordinary interpretive work of a court; Republicans contended that it amounted to altering election rules after the fact.
Bush’s legal team appealed to the U.S. Supreme Court, primarily arguing that the state court had acted in violation of the presidential electors clause, a provision of the federal Constitution that resembles the elections clause in structure as well as name.
Where the elections clause concerns congressional elections, the electors clause empowers states to appoint presidential electors “in such Manner as the Legislature thereof may direct.” That, Bush’s lawyers argued, prohibited state courts from altering election laws enacted by the legislature, as they contended Florida’s high court had done.
The U.S. Supreme Court’s Bush v. Gore opinion awarded the presidency to Bush on other grounds. But three justices — then-Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas — issued a concurring opinion seen as the genesis of what is today called the independent state legislature theory.
There are many versions of the independent state legislature theory, but in broad outline, it holds that, by assigning legislatures the authority to set the rules for federal elections, the U.S. Constitution implicitly insulates those rules from ordinary state-level checks on the legislative function, like judicial review. As Rehnquist put it in his concurrence, “This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures.”
Today, the Bush v. Gore decision is often conflated with parallel maneuvers by Republicans in the Florida Legislature, who began the process of voting to award the state’s electoral votes to Bush. But their strategy mostly turned not on the constitutional theory but on an obscure 1845 statute that allows state legislatures to pick their own presidential electors if their state has “failed to make a choice” for president on Election Day.
(The 1845 law was mainly intended to accommodate emergency conditions, like natural disasters, legal scholars have found. But Florida Republicans argued that their state’s problems in 2000 amounted to a failed election. Congress is expected to do away with the law during the current lame-duck session.)
The independent state legislature theory didn’t catch fire. In fact, a Supreme Court majority — the four liberals plus Justice Anthony Kennedy — rejected it the one time the high court addressed it head on, in a 2015 case that upheld the constitutionality of Arizona’s independent redistricting commission.
But the theory made a comeback, courtesy of four members of the Supreme Court’s conservative bloc, in the run-up to the 2020 presidential election. In several potential swing states, like Pennsylvania and North Carolina, Democrats had persuaded state courts to adjust election rules to address complications created by the COVID-19 pandemic and postal delays — in many cases, extending the date by which mail ballots had to reach election officials. When Republicans appealed, the U.S. Supreme Court declined to intervene.
But Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh, at times joined by Thomas, all wrote versions of the same thing in opinions that did not carry the weight of precedent. As Gorsuch put it in one such passage: “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
Even as the independent state legislature theory largely faded from discussions of presidential elections between 2000 and 2020, it persisted in litigation over redistricting. With conservative justices skeptical that federal courts had the power to undo partisan gerrymanders, reformers — mostly aligned with Democrats — began to find success proposing ballot initiatives that would place redistricting in the hands of independent commissions.
Democrats also turned to state courts to challenge restrictive voting and election laws, including Republican gerrymanders. State constitutions tend to be more expansive and easier to amend than the federal charter, and relying on state law insulated the cases from a Roberts court hostile to many liberal voting and election law claims.
The independent state legislature theory was one of the only ways Republicans could get the U.S. Supreme Court to save them from Democrats’ state-level maneuvers.
Some of the fiercest redistricting battles were playing out in North Carolina. In the election of 2010, the GOP gained control of both chambers of the state legislature for the first time in over a century, due partly to a Republican operation targeting swing states ahead of the 2011 redistricting process. In their heyday, North Carolina Democrats were hardly gun-shy about gerrymandering, and the Republican majority approached redistricting with equivalent ruthlessness.
Liberal advocacy groups and Democrats went to court, and for the next decade, redistricting litigation became a near-constant. In 2016, North Carolina Republicans suffered a serious setback: Their congressional district map was struck down as a racial gerrymander. So they pivoted to explicitly partisan gerrymandering, using data on voting patterns to dilute Democratic Party voting power.
More lawsuits followed. But the options narrowed in 2019, when the Rucho decision closed federal courts to opponents of partisan gerrymandering.
In North Carolina, redistricting for the present decade got underway in late 2021. Fed up with endless litigation, Republicans pledged to forego the use of data on race or party preference and to draw maps in transparent fashion — on computers in committee rooms, subject to public scrutiny via YouTube livestreams.
The process looked different, but the maps it produced did not. North Carolina’s electorate is very closely divided. Yet under the new congressional maps, Democrats would win only three of the state’s 14 congressional districts — four in a good year. Republicans would take the other 10 or 11.
How GOP lawmakers had managed to draw such slanted maps without partisan voting data remains a matter of dispute. But several state judges saw clear evidence of a gerrymander; one opinion called the maps “extreme partisan outliers,” creating so few competitive districts as to be “incompatible with democratic principles.”
This February, the North Carolina Supreme Court ruled that the state constitution bars partisan gerrymandering of this sort. In response, lawmakers redrew the congressional map. But that, too, failed to pass muster. Following a process established by the legislature, the trial court then appointed special masters to redraw the map for the 2022 election; lawmakers could give it another crack afterward.
The resulting map reflected the roughly equal split between Democrats and Republicans in North Carolina. This fall’s House election yielded a delegation of seven Democrats and seven Republicans.
Over the past two years, many national Republicans have fixated on the independent state legislature theory. But in North Carolina, it was almost an afterthought until Republican lawmakers wanted a pathway to the Supreme Court.
At its core, Moore v. Harper boils down to what the Constitution means when it assigns each state’s legislature the task of regulating congressional elections: Does that mean the legislature is subject to the traditional oversight of state courts and the gubernatorial veto? Or does it mean the legislature acting alone, with no such oversight? If it’s the former, then laws setting the rules for federal elections are no different than any other laws. If it’s the latter, things get complicated.
If the elections clause was meant to exclude other parts of state government, then the most extreme version of the theory is also the most natural reading of the clause: Only the strictures of federal law can check how state legislatures regulate congressional elections.
That position, however, is too extreme for all but Trump’s closest allies, like John Eastman, an architect of Trump's attempt to use the independent state legislature theory to retain power after the 2020 election, who filed an amicus brief advocating for it.
For their part, the North Carolina lawmakers maintain that state constitutions, as enforced by state courts, can’t impose substantive obligations or restrictions on the legislature’s power to regulate federal elections. This position reflects their principal concern: North Carolina Republicans waited a century to pry political power away from the Democrats, and they feel aggrieved that state courts keep interfering with the pursuit of their agenda.
The state’s GOP lawmakers see the case through local eyes, according to Pat Ryan, who until earlier this year served as deputy chief of staff to Phil Berger, the top Republican in the Senate. Ryan described the case as the latest parry in “a battle over separation of powers between the judicial and legislative branches.”
That view is echoed by local Democrats and liberal activists. The Republicans didn’t really care about coup fantasists in the Trump camp, or even the national party’s broader ambitions and plans. “This is all about their fight with the judiciary,” Pricey Harrison, a Democrat on the House Redistricting Committee, told me. “They’re trying to figure out how to game the system.”
Many Republicans concerned with the national stage, meanwhile, have argued for a narrower version of the independent state legislature theory: State constitutions can limit how legislatures regulate federal elections, but only if they’re sufficiently specific.
That would operate to the benefit of national Republicans in two respects. First, it would let them undo recent state supreme court rulings that they dislike while retaining the ones they like. So, for example, rulings rejecting GOP gerrymanders not only in North Carolina but also in Pennsylvania rely on open-ended provisions in their state constitutions.
By contrast, in New York, where the state’s high court overturned an aggressive Democratic gerrymander this year, the state charter contains an explicit ban on partisan gerrymandering. Second, it would give Republicans’ allies in the Supreme Court’s conservative bloc maximum flexibility to bend future election disputes the GOP’s way. The line between sufficient and insufficient specificity, after all, is in the eyes of the beholder.
Federalizing state lawmaking isn’t a natural right-wing position, and tellingly, many conservative legal luminaries of the past few decades have filed briefs opposing the independent state legislature theory in any form.
“It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy” in its effects on redistricting and election administration, reads the brief of the legal team representing individuals and advocacy groups opposing the North Carolina GOP.
The legal team includes J. Michael Luttig, a former federal appeals court judge widely admired in conservative legal circles. Another conservative former federal appellate judge, Thomas Griffith, joined an amicus brief opposing the independent state legislature theory; yet another was backed by the co-founder of the Federalist Society, Steven Calabresi. Most legal scholars, historians and election officials — liberal or conservative — offer similar views.
Supporters of the independent state legislature theory rely chiefly on selective readings of earlier Supreme Court cases and attempt to play to the originalist preferences of some conservative justices. The historical record surrounding the drafting of the U.S. Constitution and early state charters offers little illumination.
Still, the North Carolina lawmakers rely heavily on a document that many historians regard as a fabrication, written not during the time of the Constitutional Convention in the late 1780s but in 1818. As the brief Luttig joined puts it, “Casting about for an originalist response, Petitioners cite the so-called ‘Pinckney Plan.’ But that ‘Plan’ is a thoroughly discredited document concocted 30 years after the Convention.”
The frustration of the GOP lawmakers at the North Carolina Supreme Court’s Democratic majority is understandable on one level.
The state court justices, in the case that led to Moore v. Harper, hang an awful lot on fairly thin reeds; they derive a prohibition on partisan gerrymandering from four very broadly phrased clauses in the state constitution.
One reads, simply, “All elections shall be free.” (The frustration for North Carolina Republicans may ease in the near future: The GOP won two state Supreme Court seats in elections this month and come January, the court will have a 5-2 Republican majority. That suggests that, should the Republican lawmakers make yet another attempt at a gerrymander, they may receive a more favorable outcome.)
Yet more understandable still is the worry of those opposed to the independent state legislature theory — that the parochial concerns of one state political party will justify upending the regulation of federal elections nationwide.
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