Last week, the U.S. Supreme Court agreed to consider Moore v. Harper during their next term in the fall. Even though the majority of the Ohio Supreme Court decided not to hold the Ohio Redistricting Commission republican members’ feet to the fire on two requests for contempt charges, the Ohio Supreme Court has rejected all the maps submitted by the republican majority on the commission as invalid, illegal and unconstitutional. This case would allow the state legislature to draw maps that would be illegal and not subject to state court review.
Marc Elias is an American attorney best known for his involvement in Democratic Party political campaigns, redistricting litigation and election litigation. He has provided more insight into why Moore v. Harper is potentially dangerous. According to Elias, this is “a case that could shake the foundations of federalism and judicial review”.
Moore v. Harper is a North Carolina redistricting case that could shake the foundations of federalism and judicial review and undermine the tools available to protect future elections. On its face, Moore v. Harper looks like a straightforward redistricting case. However. what makes this case so potentially dangerous is the fact that republicans are advancing their radical legal theory – called the independent state legislature (ISL) theory – that would limit state courts’ ability to interpret their own state’s laws and apply their state’s constitutions to federal elections.
In 2011, the North Carolina Legislature drew a new congressional map that illegally used race to limit the influence of minority voters in congressional elections. After a federal court struck that map down, the Legislature drew an avowed partisan gerrymander to achieve the same result. When that map was challenged, a divided U.S. Supreme Court held in Rucho v. Common Cause that federal law and the U.S constitution did not provide standards for invalidating partisan gerrymanders. Thus, the map survived federal court review.
Critically, the Court assured voters that this decision would not “condemn complaints about districting to echo into a void.” Chief Justice John Roberts, writing for the conservative majority in 2019, pointed future plaintiffs specifically to state courts to have their concerns addressed: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”
In 2021, North Carolina Republicans again redistricted its congressional maps and again engaged in egregious partisan gerrymandering. This time, taking its cue from the Supreme Court’s ruling in Rucho, plaintiffs sued in North Carolina state court. After significant briefing, expert analysis and testimony, the North Carolina Supreme Court ruled that the map enacted by the Legislature violated the state constitution’s “free and fair elections” clause. The Republican-controlled Legislature then refused to remedy its violation of the state constitution. Instead, its leadership sought Supreme Court review of the decision.
What makes Moore so potentially dangerous is the fact that Republicans are advancing their radical legal theory — the independent state legislature (ISL) theory — that would limit state courts’ ability to interpret their own state’s laws and apply their state’s constitutions to federal elections. The theory rests on the fact that the U.S. Constitution grants state legislatures the ability to set the “time, place and manner” of congressional elections, subject to an override by Congress. A similar provision gives state legislatures the power to set the “manner” of choosing presidential electors.
In Moore, North Carolina Republicans are arguing that power given to the “legislature” is exclusive to the legislature. In its strongest form, it would exclude a governor’s ability to veto an election bill. In the case of North Carolina, Republicans are arguing that it excludes meaningful judicial review by a state court interpreting its own constitution.
Until recently, the ISL theory was not taken seriously. After all, a bedrock principle of federalism — a tenet of modern conservative legal theory — is that state courts are the ultimate authority on interpreting and applying their state’s laws and constitutions. In addition, stripping or limiting judicial review runs counter to the Supreme Court’s own jurisprudence since Marbury v. Madison.
The concern over ISL is not simply a debate among election lawyers. Adoption of this radical theory would transform the power of legislatures to restrict voting rights and weaken democracy. There is no legal theory that is more connected to Trumpism and the failed Jan. 6 coup than ISL.
In the run up to the November 2020 presidential election, state courts heard and considered dozens of cases involving the application of state election law. As importantly, after the election, Trump and his allies lost 28 lawsuits in state court, nine of which involved the Trump campaign itself. In 2021, at least 39 voting rights and redistricting lawsuits were decided at the state court level. State courts in Pennsylvania, North Carolina, New Hampshire, Michigan and Montana have played a vital role in protecting the right to vote in free and fair elections. Stripping these courts of the authority to serve as a judicial check on hyper-partisan legislatures will embolden those legislatures to trample on the rights of their citizens and undermine elections. This is what Trump failed to achieve in 2020. An extreme form of the ISL theory is what John Eastman advanced in advising states to disregard the election results. It is not hyperbole to say that the Supreme Court’s decision in Moore may decide whether Eastman, or someone like him, succeeds next time.
Judge J. Michael Luttig was nominated by former President George H. W. Bush to fill the then newly created seat as United States Circuit Judge of the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Judge Luttig is a measured conservative not known for overstatement who recently wrote that “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine.” He is correct. It is that simple. The U.S. Supreme Court will either empower the likes of Eastman and Trump or it will stand behind the dozens of state court judges who protected our elections in those 28 cases. These are the stakes when SCOTUS considers Moore v. Harper next term. A dangerous theory will have its day in court.