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Next Term, Another Landmark Looms

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Next Term, Another Landmark Looms

The Supreme Court agrees to hear a case that may settle a dispute over who gets to set election rules. July 11, 2022
Politics and law

On the last day before its summer recess, the Supreme Court agreed to hear in its next term Moore v. Harper, a case that will determine whether state courts may strike down state legislative acts regulating congressional elections. The case originates from North Carolina, where state court decisions invalidated the general assembly’s enacted congressional maps, replacing them with one drawn by court-appointed experts. But Harper’s ramifications could extend well beyond the Tar Heel State. Most importantly, the decision will likely settle the debate surrounding the “independent state legislature doctrine” (ISL), which contends that legislatures’ authority to regulate congressional elections comes directly from the U.S. Constitution, thus precluding state court review and even substantive limitations imposed by state constitutions.

In November 2021, North Carolina’s Republican-led general assembly passed a congressional map that would have given Republicans a lead in ten out of the state’s 14 districts. Democratic plaintiffs challenged the map in state court, alleging that it represented an unconstitutional partisan gerrymander, violating, among other things, the state constitution’s guarantee that “All elections shall be free.” A sympathetic North Carolina supreme court invalidated the map and remanded the matter to the trial court. In response, the assembly enacted a remedial map, which the trial court rejected, instead implementing one drawn by a group of special masters for this year’s elections. After an unsuccessful request that the state high court enjoin the trial court order, members of the legislature petitioned the Supreme Court for an emergency stay. While a stay was likewise denied, nearly four months later, the Court granted certiorari.

At the heart of the case is Article I, Section 4 of the Constitution, known as the Elections Clause. It provides that the “Times, Places and Manner” of elections for congressional office “shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” (A similar clause exists in Article II relating to presidential electors; while relevant to ISL, it only indirectly concerns Harper.)

Critical is the textual specificity referencing state legislatures, not states broadly understood. Under ISL, the specific delegation of authority to institutional legislatures precludes other organs of state government, including courts, from displacing enactments pertaining to federal elections, such as congressional maps. State judicial review of the legislature’s regulations, the argument goes, would risk an end run around the Elections Clause. State courts could, for instance, effectively substitute a legislature’s map with one of their choosing.

Michael Morley, a leading academic proponent of a robust form of ISL, argues that when a legislature regulates congressional elections, it does so under a federal right, which means that such enactments need not conform to the state constitution. A state constitutional ban on partisan gerrymandering would, for example, be unenforceable against congressional election legislation but would apply to state races.

Opponents of ISL, such as professors (and brothers) Vikram Amar and Akhil Amar, maintain that state legislatures are necessarily defined in relation to the constitutions that create and delimit them, which automatically implicates the substantive and procedural limitations found in state constitutions. They write that, as a backdrop principle, “state peoples and state constitutions are masters of state legislatures.” In consequence, any legislative act that violates the state constitution ceases to have the force of law; state courts can therefore overturn congressional maps ruled unconstitutional.

Opponents also point out that, shortly after the Constitution’s ratification, several states adopted or revised their constitutions to regulate all elections, state and federal. Originalists should, on this view, accept a historical understanding of legislatures bound by state constitutions. As a distinct matter, the brothers Amar contend that all state legislatures have either expressly or implicitly incorporated state constitutions by reference, effectively choosing to be bound by their limitations and subject to review by state courts.

No matter which way the Court rules, Harper’s consequences will be far-reaching—and counterintuitive. If the Court adopts ISL in some form and limits state court review, that will likely involve more litigation in federal courts involving the interpretation of state law. This is a somewhat odd result, in light of the Constitution’s delegation of authority to state legislatures. It is yet unclear whether federal judges will defer to authoritative state court interpretations of state election law, as usually occurs. And if state constitutions cannot limit congressional election legislation, rules that currently cover all elections may begin to diverge, thus posing challenges for administrators.

On the other hand, if the Court rejects ISL, it runs the risk that state courts—and their partisan judges—would interpret broad constitutional language to contravene the Election Clause’s express text empowering politically accountable legislatures. As Justice Samuel Alito wrote in March, respect for the Elections Clause suggests that “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”

Finally, ISL runs against the grain of two important precedents of the last decade. In the 2015 case Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court upheld the Arizona constitution’s grant of redistricting power to an independent commission, outside the control of the state legislature. And four years later, in Rucho v. Common Cause, where the Court ruled that partisan gerrymandering claims fell outside the jurisdiction of federal courts, Chief Justice John Roberts wrote in the majority opinion, “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” Consequently, Harper might be decided on stare decisis grounds, notwithstanding the interpretation of the Elections Clause.

This term made clear that the Court isn’t shying away from deciding landmark cases. Come October, Harper will continue that momentum.

Photo by Win McNamee/Getty Images

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