First of three parts on Moore v. Harper
Probably no constitutional debate is less settled, after 235 years, than this: Did those who wrote America’s basic charter create a democracy or a republic? The debate goes on, even though history shows clearly that the Founders decided that the nation should have both.
Establishing a democracy, the Constitution made the people sovereign: they do rule. Also setting up a republic, the Constitution arranged for the people to rule through elected representatives, at federal and state levels. The Founders, in designing a new national government with strong powers over the nation’s people, were determined to give the people themselves (“We the People”) the option of granting or withholding their consent.
As a recent scholarly article summed up what the thinking was in 1787: “No one disputed the central principle, close to the core ideology of the American Revolution, that legitimate government requires consent of the governed.”
An abiding assumption has been that the representatives, in passing laws to regulate elections, should reflect the democratic will of the people themselves, not “usurp” the fundamental role of the voters.
But what if, after all these years, that basic assumption of citizen authority no longer holds? What if the Constitution were now to be interpreted to mean that state legislatures can decide directly who gets elected as President and that they have final authority to influence the choice of members of the House of Representatives — even to the point, in both situations, of defying a majority of a state’s voters?
That is exactly what the Supreme Court will consider when the Justices go to the bench on December 7, for a hearing in a case titled Moore v. Harper. The outcome of that case may rank in importance in the history of American elections with the 1964 decision (Reynolds v. Sims) that required equality of voting rights – “one-person, one-vote.”
The Moore v. Harper case is a dispute over the election districts for choosing North Carolina’s 14 members of the House of Representatives. The outcome, though, seems sure to have a spillover into presidential elections – and, in fact, it was that same theory that in 2020 led to the attempted “coup,” to overturn Donald Trump’s defeat.
Seldom in history, and in no state since 1860, has a state legislature had the independent authority that North Carolina’s legislative leaders are seeking from the Court. Their argument, at its most extreme, would exempt the legislature in enacting laws to control federal elections from any limitation by state courts or the state constitution, and with uncertain restraint by the Supreme Court or lower federal courts.
How might legislatures gain that power today? It would take only a majority of the Court (at least five of the nine Justices) to embrace a novel theory that has been debated throughout U.S. history but has never been declared officially to be the law of the land. It is known as the “independent state legislature” theory, or doctrine.
Here, in summary, is the theory: (a) two provisions of the Constitution give the legislatures of the states a primary role in the election of President and members of the House, (b) state legislatures, when carrying out those assignments, are said to be performing a federal not a state function, so (c) there is no role for state courts or state constitutions to review or overturn how the legislature has acted and no role for a governor’s veto, (d) federal courts would have narrow power of review but only for clear violations of federal law or the Constitution, and (d) the assignment to the legislatures is in no way limited by what a majority of voters in a state would prefer.
In short, it is a theory of legislative choice, not the people’s choice.
Here are the claimed origins of the theory in the Constitution’s text:
For the House of Representatives, Article I’s text gives the state legislatures the authority to set “the times, places and manner of holding elections.” This includes the drawing of election district maps for each state’s seats in the House. Congress is assigned a back-up veto power over what those legislatures do, and that could be a significant check if Congress could agree on any response; it sometimes has.
According to the theory in the North Carolina case, the legislature is free to “gerrymander” the election district lines for House seats – manipulating which districts have which residents – in a way that predictably guarantees that a favored political party’s candidates will win most of the elections, no matter what a statewide majority of voters might prefer.
A state’s citizens could be made all but powerless to put an end to “partisan gerrymandering” by assigning the redistricting task to a non-partisan commission, as 11 states have done. (And, under a 2019 Supreme Court decision that itself was a serious threat to democratic choice, the U.S. Constitution puts no bar or limit on “partisan gerrymandering,” so that potential check is gone.)
“Partisan gerrymandering” cannot be done for election of U.S. Senators, because Article I gives each state two seats in that chamber and they are elected statewide. (Another provision, in Article V, actually guarantees that no state may lose its seats in the Senate without its consent, and that is not going to happen.) Until 1913, the legislatures themselves elected the Senators, but that ended when the 17th Amendment was ratified, assigning that power to the people of the states, voting directly.
For the Presidency, Article II’s text gives each state as many votes in the Electoral College (which makes the final choice of the President) as that state has members in the House plus members of the Senate; the choice of the candidate or candidates getting that state’s electoral votes is made by the method “as the [state] legislature may direct.”
According to the theory, then, if the legislature decides that it wants to keep that selection to itself, it can do so even if its selection is a candidate that would not have been the people’s choice. Indeed, no vote of the people would ever have to be taken.
As applied to the Presidency, the theory would turn the Electoral College into an institution that caters to the party preferences of the state legislatures, regardless of what the voters might want.
Already, the system that gives at least two electoral votes to each state in choosing the President (reflecting its Senate seats) is far from a guarantee of equal representation for all of the people, because the states vary so greatly in population. The smallest, Wyoming, gets as many Senators as California, the largest. And, since the 1960s, most of the smallest states have mainly sent Republicans to the Senate, and most of the largest have tended to send Democrats, but that has not guaranteed continuing Democratic control. In fact, partisan control of that chamber seems to shift erratically, without regard to how the majority of Americans vote.
The “legislative choice” theory, while not directly affecting the Senate, would likely make the Presidency and the House less responsive to a majority, further confounding the Founders’ attempt to erect a working democracy and a representative republic.
Next: Part II of this series, appearing tomorrow, will describe the role that the theory has had in U.S. history, including its prior appearances before the Supreme Court – especially, in 1892, 2000 and 2020.