Supreme Court's redistricting case is a threat to democracy

On Wednesday, the Supreme Court will hear oral argument in Moore v. Harper, through which North Carolina’s Republican legislators are fighting to protect an “aggressively gerrymandered congressional map” thrown out by that state’s Supreme Court on constitutional grounds. 

But while the case is, on its face, about gerrymandering and congressional elections, it’s really about the power of state courts and presidential elections.

For decades, states’ rights have been one of the central tenets of modern Republican Party politics, animating everything from the crusade to topple Roe v. Wade to the fight against Covid vaccine mandates and the discharge of student loan debt. 

But where elections are concerned, conservatives have embraced a form of federal control: through its courts. And over the last 20 years, they have transformed a passage from then-Chief Justice William Rehnquist’s concurrence in Bush v. Gore, which reasoned that any departure from state legislation concerning presidential elections “presents a federal constitutional question,” into a movement for the adoption of the “independent state legislature doctrine.” 

The independent state legislature doctrine is the theory that through two clauses — the Elections Clause of Article I and the Presidential Electors Clause of Article II — the Constitution gives state legislatures sweeping authority over the appointment of presidential electors and the administration of congressional elections. Among its adherents are former Trump election lawyer John Eastman, who filed an amicus brief arguing its virtues, and to a less extreme extent, the Republican Party itself. If embraced by a majority of the Supreme Court, the independent state legislature doctrine could reduce the role of or even prevent state courts from reviewing and regulating state election laws.

Four of the justices have already voted to grant the GOP legislators’ cert petition in Moore — and that very likely means the legislators already have at least four conservative justices in their corner. Justice Brett Kavanaugh previously tipped his hat to the doctrine when the Supreme Court refused to allow Wisconsin to count late mail ballots in October 2020. His footnote had many legal observers — this one included — agog. (Bolding added for emphasis.)

Under the U. S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections. Article II expressly provides that the rules for Presidential elections are established by the States “in such Manner as the Legislature thereof may direct.” The text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. In a Presidential election, in other words, a state court’s “significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” [T]he text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.

Still, if this is only a question on which courts — state or federal — get to review state laws and actions about elections, like gerrymandering or voter suppression laws, why does Moore’s outcome matter so much? 

For one, if the independent state legislature doctrine is taken to the extreme and state legislatures’ power over elections becomes near-absolute, those legislatures could be blocked “from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections,” write Brennan Center for Justice experts Ethan Herenstein and Thomas Wolf. Imagine a post-midterms Arizona without Secretary of State Katie Hobbs’s intervention to force Cochise County to certify its results.

Moreover, according to the Brennan Center, election-related state constitutional provisions, including those banning gerrymandering and the right to a secret ballot, could be wiped out, and independent redistricting commissions, as created in Arizona, California, Michigan and other states, could as well. 

The worst-case scenario would be if state legislatures alone are allowed to decide the appointment of presidential electors, unchecked by state courts. Some of the maneuvers Trump and his advisors attempted in 2020, including appointing competing slates of electors, might be more successful. That’s why, in an op-ed last year, the retired federal judge and conservative stalwart J. Michael Luttig characterized the independent state legislature doctrine as the first of a two-step “Republican blueprint to steal the 2024 election.” Luttig noted that Trump and the GOP could only be stopped “if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.” (On the latter front, the House’s Jan. 6 committee and other allies, such as Sen. Amy Klobuchar, D-Minn., are running out of time before this Congress ends.)

That’s why legal commentator Ian Milhiser wrote this week that Moore v. Harper is “the biggest threat to free and fair elections in the United States to reach the Supreme Court in my lifetime.” Indeed, given what’s at stake, it’s no surprise that nearly 70 amicus briefs have been filed in the case.  

Not all is lost, however, at least not yet. One glimmer of hope comes from the number of noted conservative lawyers and scholars who have argued against the adoption of the independent state legislature doctrine. Luttig, for example, has signed on as co-counsel for the nonstate parties, including Common Cause and the North Carolina League of Conservation Voters, who opposed North Carolina’s legislative gerrymander — and now also oppose using the independent state legislature doctrine to decide this and other election-related cases. Others, like famed GOP election lawyer Ben Ginsburg, have argued that adopting the independent state legislature doctrine could “risk confusion, chaos, and disenfranchisement” in election administration.

And I’m keeping my ears open to see whether a brief by three legal scholars specializing in constitutional originalism — including Federalist Society co-founder and co-chairman Steven Calabresi — gets any traction. They argue that the independent state legislature doctrine fares “miserably” under an originalist lens because at the time the Constitution was ratified, “[a] state’s ‘legislature’ was not just something created to make laws on behalf of the people; it was something created and constrained by the state constitution.” Because state legislatures have always owed their “very existence and shape” to state constitutions, Calabresi and co-authors Akhil Reed Amar and Vikram David Amar say the independent state legislature doctrine is a misnomer that should be dead on arrival. 

But if even the self-identified originalist justices aren’t persuaded? As Luttig ominously told the New Yorker, “[l]egally, that’s the whole ballgame.” Watch this case — and then, this space.