The Supreme Court will hear arguments in its fall 2022 session on whether state courts play any role in judging the constitutionality of election laws and legislative district maps passed by state legislatures.
The case of Moore v. Harper is brought by Republicans in the North Carolina state legislature who claim that state courts have no say on whether the voting laws they write or the district maps they adopt are unconstitutional under their state’s constitution.
If the court accepts these arguments, it would wipe out the last remaining protection available against extreme partisan gerrymandering and greatly increase the ability of state’s to adopt highly restrictive voting laws.
It could also play a role in any future attempt by presidential candidates to steal an election, as former President Donald Trump attempted in the 2020 election. Siding with the North Carolina Republicans could effectively give all electoral authority to state legislatures, including in the approval of the winner of the state’s Electoral College electors.
The argument presented by North Carolina Republicans is that the U.S. Constitution’s elections clause grants state legislatures alone the power to set the “time, place, and manner” of federal elections. That power includes the ability to draw legislative district maps and to set rules for voter registration, polling locations, accessibility of alternatives to in-person Election Day voting and any other form of election law imaginable.
Such power could also include that ability of the legislature alone to approve and certify slates of electors for the Electoral College. This would empower the very scheme that Trump attempted to employ in his effort to steal the 2020 election by having Vice President Mike Pence discount the Electoral College votes of multiple states because of the existence of fraudulent electors.
North Carolina Republicans are challenging a congressional district map drawn by the state supreme court in 2021 after the GOP-controlled legislature and Democratic Gov. Roy Cooper could not reach agreement on a map. Republicans charge that the state courts have no authority to rule under the elections clause. In their argument, they say the state legislature is the only body that has any say in redistricting.
In their challenge, they cite the elections clause: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
The legal question at issue in the case revolves around whether the grant of the elections power to legislatures exists beyond the reach of state constitutions. North Carolina Republicans propose an extreme reading of the clause that would place state legislatures outside their own state constitutional regimes when regulating elections. This differs greatly from the original interpretation of the clause.
If this doctrine is accepted by the court, it would leave no recourse for citizens to challenge gerrymandered congressional district maps. In 2019, the Supreme Court ruled in the case of Rucho v. Common Cause that federal courts have nothing to say on gerrymandering. Additionally, the majority opinion said state courts are the proper place for such questions.
Independent redistricting commissions adopted by states to draw nonpartisan maps would also become unconstitutional if this doctrine is adopted. The court ruled in 2015 in Arizona State Legislature v. Arizona Independent Redistricting Commission that these commissions were constitutional. That decision, however, was decided by a vote of 5-4 with the late Justice Ruth Bader Ginsburg and retired Justice Anthony Kennedy providing the pivotal votes.
But now the court will hear arguments in a case that is in direct contradiction to both precedents. If it cuts off state courts as a remedy for extreme gerrymandering and eliminates independent redistricting commissions, partisan state legislatures could impose near one-party regimes by completely cutting their opposing party out of power.
If the doctrine is expanded to all election laws, there could be significant new restrictions on voting rights.
The court is also set to hear a challenge to the Voting Rights Act brought by Republicans in Alabama that will likely remove protections for racial minorities to receive equal representation when congressional district lines are drawn. Combined, the two cases could lead to a dramatic reduction in Black and Latino political representation.
Four Supreme Court justices expressed interest in taking up a case on the independent state legislature doctrine during the 2020 election when Pennsylvania Republicans brought suit against the state supreme court’s ruling allowing mail-in ballots sent by Election Day to be counted if they were received up to 72 hours after Election Day.
That case deadlocked 4-4 with Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh voting to block the court’s decision and take up the argument over the independent state legislature doctrine. This happened during the brief interregnum after Ginsburg died and before Justice Amy Coney Barrett had been confirmed.
The case came up again in 2020 when the court blocked a Wisconsin court’s decision allowing mail-in ballots sent by Election Day to be counted if they were received up to six days after the election. Both Gorsuch and Kavanaugh expressed interest in hearing a case on the independent state legislature doctrine.
“Under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections,” Kavanaugh wrote, adding that a state court “may not depart from the state election code enacted by the legislature.”
“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,” Gorsuch wrote.
Barrett’s views on independent state legislature doctrine are not known.