In Moore v Harper decision, the U.S. Supreme Court threw out the fringe “Independent State Legislature” (ISL) theory that would have given state legislatures almost unchecked power over federal elections – which could have transformed elections for Congress and president. The ruling is particularly good news for Ohioans because it means an independent redistricting commission is not off the table when it comes to future redistricting reform.
The case directly involves a challenge brought by Republican state legislators in North Carolina. The Supreme Court had been asked to decide whether the North Carolina Supreme Court had the power to strike down the legislature’s illegally gerrymandered congressional map for violating the North Carolina Constitution. The North Carolina legislators argued that a debunked interpretation of the U.S. Constitution — known as the “independent state legislature theory” — renders the state courts and state constitution powerless in matters relating to federal elections. The decision held that the federal elections clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections and, therefore, did not bar the North Carolina Supreme Court from reviewing the North Carolina legislature’s congressional districting plans for compliance with North Carolina law.
BACKGROUND OF NORTH CAROLINA CASE
In 2021, North Carolina’s Republican-dominated state legislature passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. The gerrymander was so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats. The map was a radical statistical outlier more favorable to Republicans than 99.9999% of all possible maps.
Because the U.S. Supreme Court has ruled that federal courts cannot hear partisan gerrymandering cases, voters contested the map in state court, contending that the map violated the state constitution’s “free elections clause,” among other provisions. In February 2022, the North Carolina Supreme Court agreed with the voters and struck down the map, describing it as an “egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
Not to be deterred, the legislature proposed a second gerrymandered map, prompting a state court to order a special master to create a fair map for the 2022 congressional elections. Unwilling to accept this outcome, two Republican legislators asked the U.S. Supreme Court to step in and reinstate their gerrymandered map.
WHAT IS WRONG WITH THE INDEPENDENT STATE LEGISLATURE THEORY?
The independent state legislature theory runs contrary to the constitutional text, history, practice, and precedent. The framers famously distrusted state lawmakers, so much so that when they drafted the Elections Clause, they insisted that Congress retain the ultimate power to set the rules for federal elections. The framers would not have established — and indeed did not establish — a regime that would permit state legislatures to regulate federal elections without the ordinary checks and balances that apply to state lawmaking power. State practice, from the country’s founding to today, also refutes the theory. For example, many framers — including James Madison — voted to adopt state constitutions that regulated federal elections, as North Carolina’s does today.
On top of this overwhelming historical evidence, the theory makes no sense: it would be absurd for a state legislature to be allowed to violate the very state constitution that created it. Other problems doom the theory, as an avalanche of recent scholarship demonstrates. For these reasons, the Supreme Court has repeatedly rejected the theory for over a century, including as recently as 2015 and 2019.
NORTH CAROLINA ANTICS SOUND FAMILIAR? OHIO REPUBLICANS FILED AMICUS BRIEF
In the mean time, Ohio Republican lawmakers tried to piggyback on the North Carolina case in their attempt to appeal a July decision from the Ohio Supreme Court that found the congressional map Ohio used last year was illegally gerrymandered in favor of Republicans. The SCOTUS decision also upholds a core feature of Ohio’s congressional redistricting system, that the state supreme court has authority to enforce the state’s redistricting rules, while also affirming that voters can set up independent redistricting commissions if they so choose. Currently, former and retired Ohio Supreme Court Chief Justice Maureen O’Connor is working with a coalition that wants to reform Ohio’s redistricting process by placing a constitutional amendment before voters in November 2024.
HOW DOES THIS DECISION AFFECT THE OHIO CASE?
Even though the Ohio case is similar to the North Carolina case, the Ohio case is still pending in front of the SCOTUS. So what does this mean? It will depend on how the attorneys representing the State of Ohio will argue their case in front of the SCOTUS – if it gets that far. SCOTUS could throw out the Ohio case citing the Moore v Harper decision. Or SCOTUS may give the State of Ohio the opportunity to argue its own case.
In an opinion written by Chief Justice John Roberts on June 27, 2023, the North Carolina case was affirmed 6-2. Chief Justice Roberts was joined by Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, Brett Kavanaugh and Amy Coney Barrett. Justice Kavanaugh filed a concurring opinion. Justice Thomas filed a dissenting opinion – citing this was ‘a straightforward case of mootness’ – in which Justice Gorsuch joined and in which Justice Alito joined as to Part I. Fortunately, six justices disagreed with Justice Thomas.
Read the SCOTUS Decision here.