By Christopher Cooper
Near the end of his term, the United States Supreme Court announced its decision in the highly anticipated Moore vs. Harper case. Here are some quick reactions as to the critical points of the opinion (Michael Bitzer and I will probably have smarter and more informed takes after more time has passed and we’ve had a chance to read it a few more times).
Before we descend into the brush, I’ll back up and try to provide a no-nonsense 10,000 foot summary of how we got to this point. If you are the type of person who holds strong views on the Independent State Legislature (ISL) theory, or is prepared to weigh in on the relative weight we should apply to so-called “natural packing” versus gerrymandering , this summary is not for you.
However, if you’ve been paying attention to other things (hello: College World Series fans) and want to get up to speed quickly, this is for you. Just remember, as a no-nuance summary, it can get you through a cocktail party conversation, but not one filled with politicians or election lawyers.
Background: There’s been a lot of back and forth about North Carolina redistricting. An iteration of the North Carolina Supreme Court (with a Democratic majority) said that a certain set of maps drawn by Republican lawmakers in North Carolina represented “unconstitutional partisan gerrymanders.” The next iteration (this time, with a Republican majority on the state supreme court) said ‘No, they don’t. Oh, and by the way, we don’t think you have a standard that we can apply.
Okay, okay, but when did this theory of the Independent State Legislature get involved? The defendants then transformed into plaintiffs (Harper vs. Moore become Moore vs. Harper) and argued before the US Supreme Court (SCOTUS) that the election clause (pasted below) in the US Constitution says that state legislatures have exclusive control of congressional elections. Final point. No one, including state courts, should be allowed to infringe on their power, or else they are violating the US Constitution.
Essentially, the plaintiffs argue: “You have read the Constitution of the United States, right? Well, what part of ‘the Legislature of the same’ don’t you understand? This (in no-nonsense terms) is the basis of ISL:
What was the other side discussing? They argued that the ISL theory runs counter to both judicial precedent and common sense. Of course, state legislatures can’t do whatever they want when it comes to congressional elections. That language in the Constitution does not preclude the ability of state courts to put some safeguards on the legislature, and previous court decisions have been consistent on this point. The doomsday scenario of voting rights advocates was that if the US Supreme Court took a “radical” view of the ISL, no one could stop state legislatures from doing what they wanted to do in terms of election law. federal.
What does this mean for whether we’ll get new North Carolina maps? Here’s the weird thing: North Carolina was going to get new maps of Congress, the House of Representatives, and the state Senate, regardless of what the US Supreme Court said today. I know, weird right? So the fight wasn’t about whether we’d get new maps in 2023, but whether enforcing the ISL would make it so that state courts couldn’t tell state legislatures that they’ve gone too far.
What happened? SCOTUS ruled 6-3 in favor of the defendants (Harper, or those who originally contested the North Carolina maps).
Of the six in the majority, the three liberals joined the three conservatives (Justices Kavanaugh, Barrett, and Chief Justice Roberts), while the remaining three conservatives, Thomas, Alito, and Gorsuch, dissented from the majority. Chief Justice Roberts authored the majority opinion, with Kavanaugh accepting the result but offering some of his own concurring thoughts, and Thomas writing for the dissenters.
Here’s a condensed breakdown of the three writers’ main arguments (if you have time, you’re better off reading the opinion in the original):
most said: You can’t just dismiss the role of state courts and say legislatures can do whatever they want. That’s not what the founders wanted and that’s not what previous courts have decided. State courts absolutely have a role to play(!)… but we won’t define exactly how far that role extends. However, it seems like a good idea at some point.
The Concurring Opinion said: I agree! Oh, and Judge Rehnquist might have had a good standard for where the line is.
The dissenting opinion said: This case is moot anyway. There is nothing to see here. Oh, and most didn’t give us any guidance on saying when a state court overreaches. This is going to create a big mess.
Four (slightly) more nuanced tentative thoughts:
1) This one is already being viewed in terms of partisan wins and losses (a “win” for the Democrats and a “loss” for the Republican plaintiffs), but that’s not really the right framework, in my opinion. If SCOTUS went the other way, New York Democratic lawmakers would have gained as much power today as North Carolina Republican lawmakers. What’s good for the goose is good for the goose, and all that. So, yes, a win for voting rights advocates, but not a loss for Republicans any more than it is a loss for Democratic state legislators in New York.
2) Speaking of wins and losses, yes, this is a “win” for Harper, but the devil is in the details (ironic, given the lack of details in this article). SCOTUS didn’t embrace ISL, but they didn’t completely reject it either. They said there is absolutely a place for courts… except when there isn’t. But where that line is is not (at least right now) very clear.
3 in Rucho vs. common cause (another case that came out of NC), SCOTUS kicked the redistricting ball back to state courts, saying that “partisan redistricting claims raise political issues beyond the reach of federal courts.” With Moore vs. Harperthey appear to be preparing the federal courts for more issues on the redistricting front.
4) Elections to the state Supreme Court were already highly partisan, expensive, and closely watched affairs. This decision will only add fuel to a fire that is already burning.
There will be much to digest and analyze this important decision for democracy and American politics in the weeks, months and years ahead. But one thing is certain: North Carolina once again provided an important case regarding electoral and redistricting laws dating back to the 1980s. The five-decade run of constitutional laws critical of the Old State del Norte remains intact.
Dr. Christopher Cooper is the Madison Distinguished Professor of Political Science and Public Affairs at Western Carolina University, where he serves as director of WCU’s Institute for Public Policy. he tweets on @chriscooperwcu.