Moore v. Harper
Moore v. Harper, legal case in which the U.S. Supreme Court rejected (6–3) the “independent state legislature theory,” which holds that state courts lack the authority to invalidate, on legal or constitutional grounds, state regulations pertaining to federal elections and to replace them with regulations of their own devising. The theory has been widely understood as incompatible with democracy, because its general acceptance would enable state legislatures controlled by a single political party to impose voter-suppression measures, including extreme partisan gerrymandering, aimed at limiting the number of elected representatives of the other party. In its decision, issued on June 27, 2023, the Court also held that state courts do not have “free rein” to invalidate and replace state electoral regulations.
According to the independent state legislature theory, rulings by state courts that strike down or order the replacement of regulations of federal elections within their jurisdictions are incompatible with the elections clause of the U.S. Constitution, which states in part that “the Times, Places and Manner of holding Elections for [federal] Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Such a broad interpretation of the elections clause has been dismissed by many legal scholars as eccentric and unsupported by historical practice and court precedent. If the independent state legislature theory were put into practice, common state constitutional provisions guaranteeing free and fair elections would be effectively irrelevant or moot, and more-specific provisions banning gerrymandering and other voter-suppression measures would be nullified. Some advocates of the theory, citing the Constitution’s presidential electors clause (“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”), have also held that state legislatures are free to appoint their own slates of presidential electors independently of the outcome of presidential elections in those states.
Moore v. Harper arose in North Carolina in November 2021, after the Republican-controlled state legislature adopted a redistricting plan for congressional elections based on data from the 2020 decennial census. A group of Democratic voters filed suit in state court, alleging that the evident partisan gerrymandering displayed in the new district map (which would likely have given Republicans 10 or 11 of the state’s 14 congressional seats, despite the roughly equal numbers of Democratic and Republican voters in the state) violated various provisions of the state’s constitution. A three-judge panel of the court found that the maps were “extreme partisan outliers” and “incompatible with democratic principles” but declined to strike them down for fear of “usurping the political power and prerogatives” of the legislature. In February 2022 the state Supreme Court rejected the map and ordered the lower court to oversee the drawing of a new one; in the process, it pointedly asserted its “solemn duty…to review” the legislature’s redistricting work. Rejecting a second gerrymander by the legislature, the lower court ordered a new map drawn by experts. The state Supreme Court later refused to put the expert map on hold.
In late February two Republican members of the North Carolina legislature filed an emergency petition with the U.S. Supreme Court, asking that it reinstate the original gerrymandered map on the grounds that the elections clause of the U.S. Constitution grants state legislatures sole authority to draw congressional districts. In March the Court denied the legislators’ request, drawing a dissent by Justice Samuel A. Alito, Jr., which was joined by Justices Clarence Thomas and Neil Gorsuch. Alito argued that the independent state legislature theory was “an exceptionally important and recurring question of constitutional law” that the Court “will have to resolve…sooner or later, and the sooner we do so, the better.” In a separate opinion, Justice Brett Kavanaugh joined the majority’s decision not to intervene but agreed with Alito that the Court should definitively address the theory at some point. Later in March the legislators filed a petition for a writ of certiorari, asking the Court to review the validity of the independent state legislature theory in light of the North Carolina Supreme Court’s rejection of the state legislature’s original map. The Court granted the petition on June 30, 2022, and oral arguments were heard on December 7.
As a result of statewide elections held in November 2022, the partisan makeup of the North Carolina Supreme Court shifted from a 4–3 Democratic majority to a 5–2 Republican majority. On April 28, 2023, the court reversed the February 2022 decision by which it had voided the state legislature’s original gerrymandered map, holding this time that North Carolina’s courts did not have the authority under the state constitution to consider complaints of partisan gerrymandering. In the view of many legal scholars, that decision rendered Moore v. Harper moot and thus justified its dismissal. The U.S. Supreme Court then asked the parties to the case and the solicitor general to submit briefs addressing the question: “What is the effect on this Court’s jurisdiction of the April 28, 2023 order of the North Carolina Supreme Court?”
In a majority opinion written by Chief Justice John G. Roberts, Jr., the Court ruled that the case had not been rendered moot by the North Carolina Supreme Court’s reversal of its earlier finding that the gerrymandered map had violated the state’s constitution, because the state court had not also reversed its earlier order enjoining use of the map in later elections. Citing the centuries-long tradition of judical review and numerous judicial precedents establishing that state electoral laws are also subject to review by state courts, the Court declared that “the Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” nor does it “insulate state legislatures from the ordinary exercise of state judicial review.” The Court also found, however, that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
While thus rejecting the independent state legislature theory, the Court did not attempt to formulate an objective standard by which federal courts could determine whether a state court’s rejection of a state electoral regulation had infringed upon the legislature’s authority under the elections clause. The Court also declined to address the question of whether the North Carolina Supreme Court had acted improperly in striking down the original map, noting that “the legislative defendants did not meaningfully present the issue in their petition for certiorari or in their briefing, nor did they press the matter at oral argument.”
