Moore v. Harper and the “Independent State Legislature” Theory – Hon. Jack L. Landau

Moore v. Harper and the “Independent State Legislature” Theory

by Hon. Jack L. Landau

For my money, one of the most interesting – and consequential – cases pending before the United States Supreme Court is Moore v. Harper.  It involves an obscure theory that was all but unheard of until a few years ago but which, if adopted, could redefine the nature of state legislative authority and radically alter the conduct of federal elections.  Here’s how the case arose.

In 2019, in Rucho v. Common Cause, the United States Supreme Court held that claims of partisan gerrymandering of legislative districts are nonjusticiable political questions “beyond the reach of the federal courts.”  That holding prompted most commentators to conclude that such claims will now be litigated in state court.  Rucho itself defended its holding by noting that it did not “condemn complaints about districting to echo into a void.”  The states, the court observed, “are actively addressing the issue on a number of fronts.”  The court noted that the Supreme Court of Florida had not long before struck down that state’s congressional redistricting plan as a violation of the state constitution and that other states have mandated state constitutional constraints on partisan gerrymandering.

Then, in 2021, the North Carolina General Assembly drew new congressional districts in response to the 2020 decennial census.   The North Carolina League of Conservation Voters, among many others, challenged the congressional redistricting on the ground that, in adopting the 2021 plan, the General Assembly had engaged in partisan gerrymandering, in violation of the Free Election Clause, the Equal Protection Clause, and the Free Speech and Assembly Clause of the North Carolina Constitution.

In Harper v. Hall, the North Carolina Supreme Court concluded that the General Assembly had engaged in partisan gerrymandering, intentionally designed to maximize Republican advantage in the state’s congressional elections.  The court concluded that partisan gerrymandering claims are justiciable in state court and that the General Assembly’s congressional redistricting plan violated the state constitution “beyond a reasonable doubt.”  In explaining its decision on the justiciability of the claims, the court noted that Rucho itself had noted the independent capacity of state courts to review such claims under their state constitutions.

North Carolina legislator Timothy Moore, among others, sought review by the United States Supreme Court, and the Court granted review, now denominated Moore v. Harper.  Significantly, the petitioners’ claim is not that the decision of the North Carolina Supreme Court was wrong as a matter of state law, but that it violated the federal Constitution.  Invoking what has become known as the “independent state legislature” theory, petitioners argue that the Elections Clause of Article I, section 4, of the federal Constitution provides that the times, places, and manner of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” although Congress may “make or alter” such rules at any time.  According to the petitioners that means that, in the absence of any contrary federal law, state legislatures have final authority over congressional elections.  And because that authority is rooted in the federal Constitution, state law – even state constitutional law – cannot restrict it.  As a result, petitioners argue, state courts are without authority to review state legislative redistricting plans, regardless of whether they might otherwise violate state constitutional prohibitions on partisan gerrymandering.

The pedigree of the independent state legislature theory is the subject of considerable dispute.

The text of the Constitution itself is silent on the authority of state constitutions to impose limits on state legislative control of federal elections.  But supporters contend that the independent legislature theory is inherent in the structure of the Constitution and its delegation of the regulation of federal elections to the political branches of government.  In addition, they claim support from some early and mid-nineteenth-century sources.  Prominently emphasized is the Massachusetts Constitutional Convention of 1820, in which the convention rejected a proposal to require the state legislature to redraw districts after every census and prohibit the legislature from altering the district boundaries at any other time.  Luminaries such as Joseph Story and Daniel Webster complained that the proposal ran afoul of the unlimited authority afforded the legislature in the regulation of federal elections under the Elections Clause.  Supporters also cite litigation during the Civil War as state legislatures authorized soldiers to vote by means of absentee ballots, contrary to state constitutional requirements that votes be cast in person.  For example, the New Hampshire Supreme Court declared, in an 1864 advisory opinion, that the state constitutional restrictions were unenforceable.  Also highlighted by supporters are the actions of the House of Representatives in 1864 to seat a member who had been elected when the deciding votes had been cast by absentee votes, contrary to the state constitution, as well as the decision of the House in 1878 to seat a member who had been elected on a date other than what the state constitution had required.

Critics of the independent state legislature theory contest the idea that it is implicit in the structure of the constitution.  To the contrary, they argue, all powers conferred by the constitution are presumptively bound by law.  They point out that, when the Framers wanted to give a branch unreviewable authority, they said so – as in Article I, section 2, which provides that the House of Representatives has the “sole” power of impeachment.   They acknowledge that there exists a handful of nineteenth-century decisions supporting the independent state legislature theory.  But, critics insist, such decisions fall far short of establishing the original understanding of the Elections Clause.  In fact, they argue, Founding-era state constitutions widely imposed procedural and substantive limitations on federal elections.  Moreover, critics assert, notwithstanding the few mid-nineteenth-century invocations of the independent state legislature theory, for over a hundred years since that time the United States Supreme Court has emphatically and repeatedly rejected it.  As the Court most recently held in Arizona State Legislature v. Independent Redistricting Commission: “Nothing in the [Elections] Clause instructs . . . that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”

Nevertheless, in recent years, some justices have signaled an interest in giving the independent state legislature theory a fresh look.  And with the Court’s decision to grant review in Moore v. Harper, we’ll soon see what that fresh look produces.

The implications of the independent state legislature theory are eye-watering.  Much will depend on the extent to which the Court feels bound by its existing case law rejecting the theory; if it chooses to adopt the theory, it will have to overrule a good deal of its prior decisions.  If the Court elects to do that, much will also depend on how broadly it chooses to interpret independent state legislative authority.  Under some especially robust versions of the theory – advanced in the briefing in Moore – the term “legislature” would be given a narrow interpretation, effectively nullifying existing laws delegating redistricting authority to independent redistricting commissions and secretaries of state and insulating legislative redistricting for congressional elections from gubernatorial veto.  Even under weaker versions of the theory, state courts would be without authority to enforce state constitutional prohibitions against partisan gerrymandering in congressional elections.   At the very least, adopting any version of independent state legislature theory would have the effect of creating potentially conflicting sets of rules for state and federal elections.  Moreover, if the Court adopts such a reading of the Elections Clause, it could be (and has been) argued that the same reading would apply to the Electors Clause – which would mean that state legislatures would be free to select Electoral College electors without a popular election.

Clearly, much is at stake.  A date for argument in Moore has not yet been set.  But the case is likely to be one of the most consequential of the coming term.  Stay tuned.

Note:  Oral argument in Moore has since been set for December 7, 2022.