‘Moore v. Harper’: A threat to US democracy or a meaningless exaggeration?

The United States Supreme Court sits across the street from the US Capitol, the seat of Congress: judicial and legislative power face-to-face. On Wednesday, a key case for the future of elections in the US went before the Supreme Court: at stake under the technicality of Moore v. Harper is granting the North Carolina General Assembly (and, by extension, all other state legislatures) the ability to regulate elections as it sees fit, with the risk of manipulating the will of the electorate and, ultimately, even altering the rules by which state electors are appointed to nominate the president.

During the hearing, conservative Justices Samuel Alito, Clarence Thomas and Neil Gorsuch appeared to lean toward handing more power to state legislatures, which are mostly Republican-controlled, to delimit electoral districts and take other decisions that Democrats fear could lead to voter suppression, without the control of judges or state constitutions. However, the three conservative justices have so far displayed an intermediate stance, or have remained silent on the scope of their decision.

The Supreme Court’s progressive justices, meanwhile, have expressed open hostility to that position, laid out in the appeal lodged by the North Carolina legislature. Sonia Sotomayor has accused the lawyer representing the legislature of “rewriting history.” Elena Kagan and Ketanji Brown Jackson warned of the risks posed to electoral integrity by removing checks and balances and empowering legislators over judges and state constitutions.

The administration of President Joe Biden, on the one hand, and the Republican National Committee on the other, also occupy opposing positions: the Republicans says it is an exaggeration to say that if the court rules in their favor it will represent “the end of democracy.” There is little doubt though of the political relevance of the case, an appeal against the decision of the North Carolina Supreme Court to annul the electoral maps drawn up by the Republican-controlled legislature in their own favor, which the court considered too partisan and artificial, and an extreme case of gerrymandering.

Speaker of the North Carolina House of Representatives Timothy Moore appealed that ruling, on the basis of “independent state legislature” theory, which asserts that only state legislatures and the US Congress have the power to decide the rules that govern federal (presidential and legislative) elections.

The text of Article 1, Section 4 of the Constitution of the United States reads: “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 […].”

The question lies in whether, when the Constitution speaks of state “legislatures,” it is giving carte blanche to those legislatures to bypass even state constitutions and the control of the courts. If the Supreme Court breaks with the settled tradition maintained throughout US constitutional history and considers that to be the case, the implications of Moore v. Harper could be staggering because it would open the way for all manner of more aggressive pro-party maneuvering by state legislatures. But it is also possible that the Supreme Court will decide that in this particular case, the state court overreached, without at the same time conceding that the power of legislatures to decide electoral rules is unlimited.

Some of the conservative justices on Wednesday seemed to favor seeking that balance and not adopting the more radical version of the independent state legislature theory. Moreover, control on the part of the federal courts remains.

“This a theory with big consequences,” said Justice Kagan. “It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that’s a violation of the constitution. It would say that legislatures can enact all manner of restrictions on voting — get rid of all kinds of voter protections. It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated.”

‘Moore v. Harper’

The North Carolina legislature established extremely partisan voting districts for state congressional elections when drawing up new maps after the 2020 census. Following an appeal by voting rights activist Rebecca Harper, the North Carolina Supreme Court in February ruled that the new maps were “unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.”

The state legislature countered that the state constitution makes no mention of gerrymandering and that the North Carolina Supreme Court had no jurisdiction to review its decision, let alone decide the boundaries of the interim maps itself. The court replied that such an argument ran against a century of US Supreme Court precedent and was “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”

In a brief to the Supreme Court, the Biden Administration argues that “state legislation regulating federal elections is subject to judicial review by state courts for conformity with the state constitution.” Regarding the power of legislatures to regulate elections, it adds: “No one disputes that. The question is how the legislature fulfills that function. And the text, history and precedent provide the answer: in accordance with the checks and balances prescribed by state constitutions.”

The Republican National Committee believes that the potential impact of the Supreme Court’s decision is being overstated. Supporters of the appeal believe that it is the state courts that are overreaching and superseding legislatures with arbitrary decisions by appealing to clauses governing voting rights, free speech and equality.

David Rivkin, a former top Republican Justice Department official participating in the case, cited Pennsylvania as an example, where the Supreme Court changed mail-in ballot rules so that the deadline for ballots was moved from the Tuesday of the election, as the legislature had decided, to Friday. Rivkin asked why a Friday is more “free and equal” than a Tuesday. Justice Alito agreed with that theory at Wednesday’s hearing. “There’s been a lot of talk about the impact of this decision on democracy. Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districts?” he asked the lawyer defending the North Carolina Supreme Court ruling.

Checks and balances

Not all Republicans agree on the issue. Arnold Schwarzenegger, the Republican governor of California from 2003 to 2011, told the court in a brief that during his tenure he pushed for districts to be drawn up by an independent commission, rather than by the state legislature in favor of the Democrats. Schwarzenegger fears that if the North Carolina legislature’s position prevails in court, that legacy will be lost. The actor also recalled that when he applied for US citizenship, one of the first things he was taught is that the US political system is one of checks and balances.

Although no one went as far during Wednesday’s hearing, some constitutionalists have warned of the risk of compromising presidential elections if independent state legislature theory is endorsed.

During presidential elections, the popular vote is transformed into electoral votes for the party that wins in each state, and it is these votes that elect the president. But the literal wording of Article 2 of the US Constitution says that in presidential elections: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

The inclusion of “in such Manner as the Legislature thereof may direct” opens a potential loophole through which independent state legislature theory in its most extreme version could pass. In the wake of Donald Trump’s attempt to subvert the electoral outcome of the 2020 presidential election, there are some who view this as a serious threat to US democracy, and others who believe it is a meaningless exaggeration.

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