07 Mar Supreme Court Hits the Pause Button on Independent State Legislatures?
Background Item One: Times, Places, and Manners: We know that in all elections–presidential, Congressional, or local–the ease of access to the ballot box, the conditions on proving voter identity, the use of mail-in ballots, the timing when votes can be counted, and many other factors, can play a huge role in voter participation and ultimately in outcomes. When it comes to federal elections, the Framers allocated to the “Legislature” of each state significant authority over those factors. As Article 1 Section 4 states:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
As caselaw will demonstrate, the meaning of “Legislature” is subject to debate.
Background Item Two: Gerrymandering: A tool used almost since our founding, gerrymandering is wielded by both parties to consolidate and preserve their power, whether in the statehouse or in Congress. The techniques used are colloquially referred to as “cracking” and “packing.” In “cracking,” strongholds of the opposite party are fragmented, splitting those voters among other districts where they will be in the minority. “Packing” involves the opposite, concentrating the disfavored party into a given district where they will be a majority but will cede control of surrounding districts. The result: one party’s voters, sometimes constituting a numerical majority, are underrepresented in the legislature, while the other party, sometimes a numerical minority, exerts artificially augmented power.
Federal authority over a state’s gerrymandering is significantly circumscribed. While upholding federal court determinations that redress overt racially-motivated redistricting, the Supreme Court has consistently declined to hear federal cases that entertain political gerrymandering disputes. Two recent controversies have been particularly formative. Gill v. Whitford, 585 U.S. ___ (2018), involved twelve Democratic voters who had challenged Wisconsin’s redistricting plan known as Act 43, passed by the Republican legislature after the 2010 census. Their claim, that Act 43 was an unconstitutional gerrymander which violated their rights under the First and Fourteenth Amendments, was upheld by a federal panel in 2016—the first invalidation of a redistricting plan on partisan grounds in more than 30 years. But on appeal, the case was dismissed by a unanimous Supreme Court for lack of Article III standing.
Gill would influence a subsequent redistricting case for which the Supreme Court granted cert in 2018 after protracted battling in the court below. Rucho v. Common Cause, 588 U.S. ___ (2019) involved a challenge to political gerrymandering practices in North Carolina, where the state’s 2016 redistricted map had been drawn by the state’s General Assembly. Challenged in federal court, the redrawn map was held to be a violation of the plaintiffs’ Equal Protection and First Amendment rights, as well as overstepping the legislature’s “times, places, and manner” prerogatives under Article I.
The Court’s review in Rucho necessarily began with an analysis of its authority to hear such a case. In a 5-4 decision, with the dissent urging that action was necessary to prevent a further erosion of democratic ideals, the majority declined to consider the case. Chief Justice Roberts wrote that, although partisan gerrymandering might be “incompatible with democratic principles,” the federal courts had no jurisdiction to hear those disputes, because they presented nonjusticiable political questions beyond reach of the federal judiciary.
Background Item Three: Return to North Carolina: North Carolina’s congressional maps were redrawn following the 2020 census, again aggressively gerrymandered. Democrats constitute roughly half of North Carolina’s electorate but claimed that the new map would give Republicans control of 10 of the state’s 14 seats in the U.S. House of Representatives. When those maps were challenged in the North Carolina Supreme Court as violating the state constitution, the General Assembly responded with the assertion that it had the autonomy to define legislative districts, free of such interference. The North Carolina high court (an elected body then comprising four Democrats and three Republicans) disagreed, holding that the maps could not be used in the primary elections and must be withdrawn. Writing for the majority, Justice Robin Hudson wrote:
Today, we answer this question: does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote? Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others? . . . We hold that our constitution’s Declaration of Rights guarantees the equal power of each person’s voice in our government through voting in elections that matter. (emphasis added).
Writing in dissent, Chief Justice Newby argued that the court was straying into the exclusive province of the state’s legislative branch:
I dissent from the decision of this Court which violates separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution. As predicted by the Supreme Court of the United States, this Court’s decision results in “an unprecedented expansion of judicial power.” (emphasis added).
Background Item Four: The Independent State Legislature Theory Gains Traction: When proponents of the gerrymandered maps appealed to the United States Supreme Court seeking an emergency stay of the North Carolina Supreme Court’s order, their request failed, and the redrawn map was used in North Carolina’s May 2022 primaries. But an imposing triumvirate—Justice Alito, joined by Justices Thomas and Gorsuch–dissented from the denial of certiorari, asserting that the concept of independent state legislatures (ISL) required analysis by the Court. Justice Alito wrote:
In my view, the applicants have shown that the question presented by this case easily satisfies our usual criteria for certiorari, see this Court’s Rule 10, and it is also likely that they would prevail on the merits if review were granted. The Elections Clause provides that rules governing the “Times, Places and Manner of holding Elections for Senators and Representatives” must be “prescribed in each State by the Legislature thereof.” Art. I, § 4, cl. 1 (emphasis added). This Clause could have said that these rules are to be prescribed “by each State,” which would have left it up to each State to decide which branch, component, or officer of the state government should exercise that power, as States are generally free to allocate state power as they choose. But that is not what the Elections Clause says. Its language specifies a particular organ of a state government, and we must take that language seriously.
The Test Case: Moore v. Harper: The ISL issue arose again when Timothy Moore, the Speaker of North Carolina’s House of Representatives, filed for certiorari. This time, review was granted by the Court, on June 30, 2022.
In Moore v. Harper, some saw a clear threat that the Court would immobilize a primary mechanism to challenge legislative redistricting, which could then co-opt federal elections—the state constitution as applied by the state courts. If adopted, the ISL theory “would disable state courts from protecting voting rights in federal elections by eliminating state constitutional protections in those elections,” legal experts Leah Litman, Kate Shaw and Carolyn Shapiro wrote of the case in an opinion piece for The Washington Post. The Brennan Center saw starker possibilities: “Extreme versions of the theory would block legislatures from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections.” Moore v. Harper was argued on December 7, 2022. Commentators noted a fair degree of skepticism among numerous Justices including Kagan, Roberts, Kavanaugh, Barrett, and Jackson. But the ultimate outcome remained shrouded.
Potential Deferral by the Court: The North Carolina Rehearing: The Supreme Court outcome in Moore now may be deferred. Republicans took control of the North Carolina Supreme Court following the 2022 elections and the newly-constituted state court announced that it would rehear its earlier decision that had invalidated the state legislature’s maps. On March 2, 2023, the Supreme Court asked for supplemental briefing from the parties to address whether the Court still has jurisdiction to hear Moore, given that the result below is not a final decision of a state court of last resort. The Court’s order, giving the parties until March 20, 2023 to file their briefs, is here.
Bottom Line: Even if the case is dropped from the Court’s current docket, the ISL issue seems likely to reappear. As Justice Alito had said in dissenting from the Court’s earlier denial of certiorari: “We will have to resolve this question sooner or later, and the sooner we do so, the better.” Although commentary and questions by a majority of Justices in the Moore argument seemed to evidence hesitancy about wholesale adoption of ISL, , the implications of an in-state victory by the North Carolina legislature is worth considering. On one hand, a decision for the legislature will seemingly encourage ever-more undemocratic gerrymandering, further devaluing the individual’s vote and perpetuating unrepresentative legislatures, both at the statehouse and in Congress. Second, the unfettered authority to override and replace responsible and locally-appropriate voting policies and procedures may inhibit voter participation. Finally, and perhaps of greatest immediate concern to local governments, the prohibition against involving the state courts or state constitutions in federal times, places, and manner issues may create two tiers of election rules and processes—one for state and local elections and an entirely different one for federal contests.
That issue has broad applicability. Most elections are administered at the county level, and if ISL succeeds, legislatures may move to control decisions such as the following:
- when a county can accept and/or count a ballot (i.e. must ballots be delivered by the time polls close on election day or can they be accepted if postmarked by election day but delivered late?);
- where polling places can be located (for example, is proximity to public transportation required);
- what types of voter ID are acceptable;
- what can be printed on ballots, envelopes, and election mail;
- what types of information (voter registration, polling location, etc.) and supports (language, disability) will voters receive; and
- what procedures will be used to test and certify voting machines and systems.
IMLA’s Interest: The potential complexity, cost, and confusion implicit in a finding which fully endorses ISL compelled IMLA to file an amicus brief in Moore, not on partisan grounds but simply to advocate for election administrability at the local government level. We will continue to monitor the issue closely as it evolves.
 In Cooper v. Harris, 581 U.S. ___ (2017), the Court affirmed a federal District Court holding that the North Carolina General Assembly had violated the Voting Rights Act by targeting race when re-drawing two Congressional districts.
 Rucho was consolidated with a similar suit from Maryland, brought by Republicans challenging a Democratic gerrymander: Lemone v. Benisek, 588 U.S. ___(2019).
 Harper v. Hall, No. 413PA21 (N.C. Feb. 4, 2022).
 Id. (citing Rucho v. Common Cause, 139 S.Ct. 2484, 2507 (2019).
 Moore v. Harper, 142 S.Ct. 1089 (2022)
 Leah Litman, Kate Shaw, and Carolyn Shapiro, A new Supreme Court case threatens another body blow to our democracy, WASHINGTON POST, July 2, 2022. Opinion | A Supreme Court gerrymandering case could further undermine democracy – The Washington Post
 Ethan Herenstein and Thomas Wolf, The ‘Independent State Legislature’ Theory, Explained, BRENNAN CENTER, June 30, 2022, The ‘Independent State Legislature Theory,’ Explained | Brennan Center for Justice
 Court seems unwilling to embrace broad version of “independent state legislature” theory – SCOTUSblog
 Moore, supra note 3, at 1090.