Previewing Moore v. Harper

Next term the Supreme Court will address the "independent state legislature" doctrine (ISL) in Moore v. Harper, 21-1271 (S. Ct., petition granted June 30, 2022), an appeal from the North Carolina Supreme Court. North Carolina legislators argue that the North Carolina Supreme Court exceeded its federal constitutional authority when it rejected legislatively-drawn congressional districts based on a finding that the districts violated the state constitution.

In a nutshell, ISL contends that the word "Legislature" in Article I, Section 4 of the Constitution means that the state legislative body alone gets to decide how congressional elections are held, including how districts are drawn. Under ISL, a state Supreme Court cannot review the legislature's decisions, even if that court thinks the legislature has violated the state constitution.

Here is the text of Article I, Section 4: "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." (There is a similar ISL issue in Article II, Section 1 as to the role of the Legislature in appointment of presidential electors.)

If ISL is the law, then North Carolina's state courts exceeded their federal constitutional authority when they redrew North Carolina's congressional districts and the legislatively-drawn districts must be used in future elections.

This column examines what Chief Justice John Roberts has written about ISL. The Chief Justice, and Justices Brett Kavanaugh and Amy Coney Barrett, will likely determine the outcome of Moore. That's because Justice Samuel Alito's dissent from an interim ruling in Moore (joined by Justices Clarence Thomas and Neil Gorsuch) indicated that he would have stayed the state court ruling. The dissent uses language suggesting that these three justices are strong believers in ISL.

At first glance, Roberts should applaud the work of the North Carolina Supreme Court in Moore and vote to affirm. Why? Because of what Roberts said in the majority opinion in Rucho v. Common Cause, (139 S.Ct. 2484), a 2019 case challenging North Carolina's congressional districting plan as a partisan gerrymander. (Moore is the seventh U.S. Supreme Court case in the last 20 years to address North Carolina's congressional districts).

In Rucho, Roberts explained that federal courts cannot address partisan gerrymandering claims because such claims raise "nonjusticiable political question[s]." But he also said that the decision does not "condemn complaints about districting to echo into a void" because "[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply." (emphasis added.)

Roberts cited as an example a 2015 decision by the Florida Supreme Court striking down Florida's congressional plan as a violation of Florida's constitution. Thus, he should look favorably on the North Carolina Supreme Court doing the same thing under North Carolina's constitution. Indeed, the North Carolina Supreme Court cited this section of Rucho when it ruled.

But there is another Roberts' decision to consider--his "devastating" dissent (according to former Justice Antonin Scalia) in Arizona Legislature v. Arizona Redistricting Commission, (135 S. Ct. 2652), a 2015 case upholding a voter-approved congressional redistricting commission in Arizona.

In 2000, Arizona voters passed an initiative establishing an independent commission to draw congressional districts. (California voters did the same thing in 2008. Eight other states have congressional districting commissions.)

The Arizona legislature, invoking ISL, filed suit arguing that it alone had the authority to draw congressional districts and that the voters could not take that power away from the legislature and give it to a commission.

By a 5-4 vote, the Supreme Court rejected the Arizona legislature's argument. Roberts, joined by Scalia, Thomas, and Alito, dissented using strong language declaring that the word "Legislature" in Article 1, Section 4 is unambiguous and means the representative body that makes the laws.

The question is, which Roberts shows up in Moore - Rucho Roberts or Arizona Legislature Roberts?

The two decisions are not fully in conflict. Arizona Legislature is about a commission entirely replacing the legislature's role while the Rucho discussion of state law addressed state courts using the state constitution to restrict legislative action. In his Arizona Legislature dissent, Roberts said there is a "critical difference" between supplementing the legislature's role and supplanting that role altogether.

The North Carolina Supreme Court's expansive view of its role in redrawing congressional districts may be more than Roberts can accept, especially if he is looking for Kavanaugh or Barrett to join him. If Roberts is in the majority, the Moore ruling is likely to be nuanced, recognizing some role for state courts in congressional redistricting but limitations on that role as well.