"Moore" deference could lead to more gerrymandering

The U.S. Supreme Court is poised to hear oral arguments in Moore v. Harper (No. 21-1271). The case has the potential to radically change the state regulation of federal elections. J. Michael Luttig, a respected republican who sat on the Fourth Circuit Court of Appeals for fifteen years, argues that Moore is the most important case since America's founding. More than 60 amicus briefs have been filed with the Court. A decision is expected before the summer of 2023.

The North Carolina legislature adopted a map for congressional elections which was challenged by Rebecca Harper and others as partisan gerrymandering in violation of state law. The North Carolina Supreme Court struck down the legislature's congressional map and the trial court ultimately implemented a replacement map proposed by three court-appointed experts. The North Carolina General Assembly notably established the state court's remedial authority.

North Carolina Representative Timothy Moore asks the U.S. Supreme Court to apply the "independent state legislature theory," which theoretically gives state legislatures effective control over federal elections without state judicial oversight.

The U.S. Supreme Court has characterized the issue in Moore as whether a state's judicial branch may nullify the congressional redistricting regulations without violating the Elections Clause and then replacing the regulations with those of the state court's own remedial devising based on the North Carolina Constitution that vests the state judiciary with the power to prescribe rules to ensure a "fair" and "free" election.

The starting point to understanding the issue is the Elections Clause of the Constitution (Article I, Section 4, Clause 1). It provides that "The Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

This constitutional grant of authority to the "Legislature thereof" gives state legislatures control over the manner of federal voting processes and elections, including control over such matters as early voting, absentee voting, voter identification, and the standards for drawing congressional redistricting maps. The question is whether this grant also should be construed to limit or preclude state judicial review or executive oversight under state law.

The Constitution contains two additional provisions that inform the analysis. The first is in the Elections Clause itself. It provides that Congress "may at any time by Law make or alter such Regulations, except to the Places of chusing Senators." With the exception involving Senators, Congress has the authority to override "such (state) Regulations."

The reservation of federal authority to override state election law does not support the view that the Founders intended to prevent state judicial review under state law. The Tenth Amendment's retention of state power stands in the way of such a construction. In addition, such a construction is not historically sound. The Founder's expressed a healthy distrust of the state's ability and willingness to run fair elections. Thus, the claim that federal oversight control ousts, or limits state control is not persuasive.

The constitutional provision dealing with presidential elections, which is commonly known as the Electors Clause (Article II, Section 1, Clause 2), is also relevant to the question. It gives each state the power to appoint electors for president and vice president "as the Legislature thereof may direct." As a matter of constitutional interpretation, the word "Legislature" should be consistently construed.

In the context of the Electors Clause the "independent state legislature" theory is especially dangerous. One look no further than the 2020 election to see the threat. State court judicial review played an important role in defeating unsubstantiated voting claims and the false elector scheme that allies of former president Donald Trump attempted to use to overthrow the 2020 election. Giving state legislatures the ability to avoid state judicial review over fraudulent electors would have catastrophic future consequences.

The "independent state legislature" theory should not be permitted to run roughshod over fundamental voting rights and state court judicial review. The Court should clarify that the Elections Clause does not preclude state courts from exercising their traditional jurisdiction over state laws for federal elections. The North Carolina court's directed remedial map was consistent with the state's Constitution and provided an important check on the legislature's partisan gerrymandering. The contrary view is antithetical to the Founder's intent and architecture of the Constitution.

It is worrying that the current Supreme Court has flirted with the historically dubious "independent state legislature" theory. Justices Thomas, Alito, Gorsuch, and Kavanaugh have each signaled support in prior opinions for the view that the Constitution requires "some deference" by state courts to state legislatures when exercising judicial authority under the Elections Clause. Should the Court adopt this rationale in Moore, it is essential that the precise meaning of "some deference" be clearly stated, otherwise disruptive wide-ranging litigation, false elector schemes, and partisan gerrymandering to intrench legislator's will continue to tear at the fabric of our democracy.