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The current Supreme Court term promises several major decisions in high profile cases, including familiar policy questions such as affirmative action in education. One such case was presented last week: Moore v. Harper, a dispute between the North Carolina state legislative majority and the North Carolina Supreme Court over the state's congressional redistricting plan.
State legislators challenged their state supreme court's power to invalidate the plan under the state constitution. They based their argument on the admittedly novel "independent state legislature theory," said to apply to the parts of the U.S. Constitution that grant states the authority to set the "time, place, and manner" of congressional elections as well as select their electoral college slate to determine the outcome of presidential elections.States playing this kind of role in national elections is part of the system of American federalism, and federal courts are generally deferential to state decisions on electoral arrangements unless a state violates some federal constitutional right or proscription.
The drawing of electoral districts in the U.S.—the controversy in Moore—is inherently political, subject to the state political process and affected by factors of partisan power and self-interest. So political representation in the U.S.—of people, their interests, their group affinities—depends on that process and those factors functioning fairly, or at least not grossly unfairly. Districting that abuses due process and distorts the political power of voters is labeled a gerrymander and is criticized for its detrimental effect on popularly accountable government. It can also be challenged in court.
Gerrymandering is as old as the republic, and what to do about it has required the Supreme Court's intervention multiple times. Even equal population districts can still dilute the electoral influence of racial minorities or political party members, by the manipulation of district lines to construct constituencies favorable to one side or the other. Congress has legislated and the court has spoken regarding the most egregious and disenfranchising of such gerrymandering, largely in the context of districting that deprives individuals of the right to an equal vote on the basis of race.
Moore concerns the problem of a partisan gerrymander, where a Republican state legislative majority used its power over the redistricting process to minimize the number of congressional districts that were competitive or winnable by the Democratic Party. Partisan gerrymandering has bedeviled the U.S. Supreme Court for decades, as it struggled to devise a manageable standard for partisan fairness in districting to apply nationwide, in many different state contexts and to many different state procedures for evaluating districting plans. Most recently, the Court held that redress for partisan gerrymanders lay with the states themselves, in their own internal decision-making processes. Such redress might come from an independent districting commission, or through a state supreme court, or in the state's own constitution. Like the districting process itself, the remedy resided in the states.
The complication that Moore poses is that the U.S. Constitution, in assigning the power to regulate congressional elections and the selection of the electoral college, speaks of states in terms of "the Legislature thereof." (Art. I, sec. 4, cl. 1, and Art. II, sec. 1, cl. 2). From this text has been derived the theory that it is the state legislature, and only the state "legislature," that may affect electoral arrangements—including electoral districting. Thus, the action of the Supreme Court of North Carolina, invalidating the state legislative majority's districting plan as in violation of the state constitution, is presumptively invalid and in violation of the U.S. Constitution. U.S. constitutional law is supreme in our federal system, and if the Constitution is interpreted as mandating that state legislatures hold sway on matters of elections, then no court can second guess a legislature's determination as to their operation in the state.
Difficulties with the "independent state legislature theory" arise because history suggests and prior decisions of the court have held, that actors other than a state legislature may influence state electoral law. Governors may veto, independent electoral commissions may discharge, referenda may direct, and state constitutional amendment may dictate—all as a legitimate part of the legislative process in the state. Much of the justices' colloquy during Moore's oral arguments concerned the implications of unchecked state legislative power: whether it was consistent with precedent and constitutional practice, whether it had been intended by the framers, whether its consequences had been or could be foreseen. Several justices demonstrated serious skepticism for the ISLT, but other more conservative justices seemed receptive to textual arguments about the Constitution's "original" meaning.
Predictions about judicial lineups aside, a doctrine of independent state legislatures is a dangerous perversion of American representative democracy that is being disguised as "plain" constitutional language. Unchecked legislative power is the power of a partisan majority to perpetuate itself and its dominance over policy making. Gerrymandering future district elections is one very effective way to do that, as is passing law that limits voting in ways that disadvantage certain voters and depress turnout of the opposition party. Early and absentee voting was a political lifeline for many during the worst phases of the Covid pandemic, and state court intervention to extend polling hours (to allow for public distancing) and mail-in ballot eligibility (to account for the high volume of such non-in-person voting) were vital public health and representation rights measures in many community contexts. "Independent state legislatures" could have and could wipe away such accommodations to protect the operation of democracy. That's a novel constitutional argument that we should all pay attention to.
Nancy Maveety is a professor at Tulane University.
The views expressed in this article are the writer's own.
