Last of three parts on Moore v. Harper

It may appear to be mere chance that the Supreme Court has before it the cases that it most wants to decide; the selection of cases is a kind of lottery: lawyers decide what to file, and the Court picks and chooses what to review.  Since 1929, the Court has had almost complete freedom to choose the cases it will decide; mandatory appeals essentially no longer exist.   These days, the Court decides only about 70 cases each term, chosen from some 5,300 filed cases.

But the Court can send signals about what it genuinely wants to do with its time, and it has done exactly that with the case of Moore v. Harper – the North Carolina congressional elections case that it will hear on December 7.

In a series of preliminary opinions and orders issued over the past two years, some of the Justices have let everyone know that they were eager to decide some case that had originated in the nation’s narrow brush with a constitutional crisis over the 2020 presidential election.

Of course, the Court does not appear to have any doubt that Joe Biden won the Presidency, and it will not revisit the counting of electoral votes that was interrupted, perilously, for many hours by the violent attack on the Capitol almost two years ago by defeated President Donald Trump’s angry legions.

What the Justices voted last June 30 to hear has the potential to rank among the most significant constitutional cases of modern times, a case that will seek to sort out what the nation’s basic charter has to say about the method of electing the President and congressional Representatives.

Groups opposing the Court’s review of the case tried to convince the Justices that the case was still not final in lower courts, usually a requirement for review, but the case was accepted anyway.  The congressional election held in North Carolina on November 8, is over and done, so the method used in that balloting will not be disturbed.  Nothing, it seems, could dissuade the Justices from going ahead.

The case of Moore v. Harper is a test of the validity of the “independent state legislature” theory, which is the idea that the Constitution assigns to the 50 state legislatures the ultimate authority on how to run federal elections, with no restraints by state courts or state constitutions or a governor’s veto.

North Carolina’s Supreme Court rejected that theory and, relying directly on the state constitution, struck down two House election districting maps that had been drawn by the state legislature.

The “independent state legislature” theory does reach the Court somewhat tainted: it was the idea that Donald Trump’s legal advisers promoted as a way to return him to the White House.  It failed at that time, but has reappeared prominently.

Respectable people and organizations are pushing the theory now, and respectable people and organizations are opposing it.  And, in the nation’s legal academy, the theory is getting a thorough vetting, fitting for an issue that may shape the future of constitutional democracy across America for years to come.

To illustrate what is potentially at stake, consider what happened in North Carolina:

1. In the 2020 election, when the state had 13 seats in the House of Representatives, Republicans won eight of the seats and Democrats five – even though the popular vote statewide was almost evenly split, 49.4 percent Republican, 49.9 percent Democratic. The 8-5 division meant the GOP had 62 percent of the House delegation to the Democrats’ 38.
2. After the 2020 Census, North Carolina gained an added House seat. The Republican-controlled state legislature drew a map to give the GOP 11 seats and the Democrats three.  That, plus a second attempt by the legislature, were struck down by the state Supreme Court – applying the state constitution – as forbidden “partisan gerrymanders.”  Neither plan was ever put into effect.
3. A plan then ordered into effect by a state court, for use only in this year’s election, produced this result this month: seven Republicans and seven Democrats – an even split. That reflected a statewide vote for the GOP winners of 1.19 million (52.1 percent statewide) and for the Democratic winners 1.09 million (47.8 percent statewide).   Those 14 winners will serve for the next two years, but the arrangements for 2024 depend upon what the Court decides.

Under the federal Constitution’s Article I, Congress could step in if it were troubled by what the North Carolina legislature has done, but the party divisions in the House and Senate are so close that such oversight is unlikely.  Indeed, it is far from clear that any reform of voting rights in America will emerge from a Congress so riven by partisan loyalties.

The Supreme Court, of course, will retain the authority to monitor what the North Carolina legislature does about elections and voting rights, if there were actual violations of federal law or of the Constitution.  In the North Carolina case, it will not be focusing on the state court’s finding of a “partisan gerrymander,” but only whether that court’s use of the state constitution frustrated the state legislature’s powers.  (Partisan gerrymandering itself can no longer be challenged as itself a violation of the federal Constitution because, in a deeply controversial ruling in 2019 (Rucho v. Common Cause), the Court barred all such challenges.)

In that very decision, however, the Court did say that partisan manipulation of election districts was “incompatible with democratic principles” and it went on to declare explicitly that opponents of that practice could rely on state constitutions in their challenges.  Was that necessary to the ruling? Maybe, maybe not; it certainly did not settle the constitutionality of the “independent state legislature” theory; that was not at issue then.

Significance of Moore v. Harper:  From time to time, Americans need to remind themselves of first principles, the foundational ideas beneath their democratic republic.  They might think again about the wisdom of James Wilson of Pennsylvania, one of the most influential thinkers at the Founding and one of the original Supreme Court Justices.  Before Independence, he wrote in 1768: “No one has a right to any authority over another without his consent; all lawful government is founded on the consent of those who are subject to it.”

One might ask: will the Supreme Court Justices think of that principle when they hear and later decide the Moore v. Harper case?  The consent of the governed was the animating idea when the Philadelphia convention drafted the Constitution.  And it is that idea that seems to be much at risk in the “independent state legislature” theory.

Three historians who have studied closely the past record of that theory have recently written: “The idea that state legislatures might elect the President was entertained [at the constitutional convention] for only one week in July.  It was then decisively rejected and was never raised again.”

After the Constitution took effect, a few states gave their legislatures power to pick presidential electors, but that was rigorously contested wherever it occurred.  No state has done so since 1860.

But that is not the history that the leaders of North Carolina’s state legislature relied upon when they began their defense in the Supreme Court of the constitutionality of the 2021 map they drew for electing the state’s members in the House of Representatives – one of the two plans nullified by the state Supreme Court.

Relying explicitly on the “independent state legislature” theory, the legislators argued that Article I’s Elections Clause “vests the power to regulate federal Senate and congressional elections in each state’s legislature, subject only to congressional supervision.  The state Supreme Court’s usurpation of that authority simply cannot be squared with the lines drawn by the Elections Clause.”

Suppose, then, that a majority of the Supreme Court decides to endorse that theory, overturns the state Supreme Court ruling and thus clears the way for the legislature to do most of what it wishes for 2024 elections, and beyond; what would the likely consequences be?

The Congressional Research Service, an arm of the Library of Congress that is generally trusted to do non-partisan studies, has recently offered a series of answers.

If the Court were to rule broadly, freeing state legislatures of any check by state courts, constitutions or governors’ vetoes, that could:

• Make clear that the theory applies to presidential elections, too.
• Remove barriers to “partisan gerrymandering.”
• Lead to overturning a 2015 Supreme Court ruling upholding the right of a state’s citizens to set up independent, non-partisan redistricting commissions to take that task away from their legislature (11 states have those now).
• Allow legislatures to stop early, pre-election-day voting, and to require voters to have photo IDs.
• Lead federal courts to put aside their usual reluctance to review the meaning of state laws and thus substitute themselves for state courts more familiar with their states’ civic values.
• Possibly lead Congress to become more energetic in reviewing and even overturning state laws governing federal elections.

If the Court were to rule narrowly but still uphold the theory in part, the CRS suggests that could:

• Mean that state constitutions could check state legislatures’ actions only if the state’s basic charter were very explicit and made clear that any limitations applied explicitly to the redistricting process – interfering little with legislative choice.
• Besides overruling the North Carolina Supreme Court, lead the Supreme Court to reconsider and perhaps overrule prior decisions by state supreme courts in Florida and Pennsylvania using broadly worded state constitutional clauses to nullify congressional districting maps.
• Lead the Court to reconsider and reject its comments in its 2019 ruling endorsing state constitutional checks on partisan gerrymandering.

If the Court were to reject the theory outright, that would strongly reinforce the authority of state courts, applying state constitutions, to oversee and check against state legislation on federal elections.

Beyond these suggestions by the Congressional Research Service, a ruling in favor of the theory would go far toward validating the strategy that Donald Trump’s advisers tried two years ago, while a ruling rejecting the theory would insulate democracy – at least temporarily – from a recurrence of that threat.

Note:  This concludes the series.