On December 7 the Supreme Court will hear arguments in Moore v. Harper, a case that is widely expected to delve deeply into a constitutional concept commonly referred to as the Independent State Legislature Theory (“ISLT”).
Background
After the 2020 Census, the North Carolina General Assembly drew a new map for North Carolina’s delegation to the United States House of Representatives. This map was challenged almost immediately as a gerrymander which violated the North Carolina Constitution. After an initial round of litigation, the North Carolina Supreme Court ordered a new map to be draw. The General Assembly drew a second map, which also failed judicial scrutiny, and with time running short, the Wake County Superior Court retained a panel of redistricting experts to draw a map for the 2022 election cycle.
The North Carolina General Assembly sought a stay in the US Supreme Court for this court-drawn map, and the Court denied the request (over 3 dissents and 1 concurrence) on March 7, 2022. However, on June 30, 2022, the Court granted cert to hear the General Assembly’s argument that the North Carolina Supreme Court had effectuated a violation of Article I Section 4 (the Elections Clause) of the Constitution.
Constitutional Framework
Article I Section 4 of the Constitution assigns the power to set election rules.
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.
ISLT proponents argue that the words “State” and “Legislature” contemplate two different entities, one of which is formally assigned the power to determine the times, places, and manner of elections, and one of which is not. Under ISLT, “Legislature” refers to the legislative branch of a state government, while “State” refers to the state as a sovereign entity and body politic. Under the theory, a legislative process within the control of each state legislature must be used to redistrict state political maps for US House delegations.
When the North Carolina Supreme Court ordered a new map to be draw and the judiciary subsequently became the map drawing entity by default for the 2022 election cycle, it exercised Article I Section 4 powers. Such judicial action is authorized by North Carolina law, but the justices will be deciding whether this violates the constitutional requirements under the Elections Clause.
Reading the Tea Leaves
Based on the opinions from the stay denial and a prior dissent by Chief Justice Roberts which favorably refers to the ISLT, there are at least five justices who will side with the North Carolina General Assembly. The nature of ISLT and the precise fact pattern of this case leave a great deal of room for justices to maneuver and the opinion may be broad or narrow. Regardless of its breadth the opinion will have a monumental impact on redistricting procedures across the country, as more than 20 states do not use a purely legislature-controlled redistricting process, and a great many states have adopted fully independent commissions which are not controlled by any popularly elected branch of government.
This multipart series will analyze the oral arguments in Moore, explore the Independent State Legislature Theory in depth, and finally propose potential policy solutions for state and local governments seeking to reduce the impact partisan gerrymandering has on the redistricting process.