This case should never have made it to the Supreme Court
“The most important case for American democracy” in the nation’s history — that’s how former appeals court Judge J. Michael Luttig described Moore v. Harper, an extraordinary lawsuit that the Supreme Court considered in oral arguments last week. Luttig, a conservative and a widely respected legal thinker, is not one for overstatement. The case threatens the fundamental structure of American government.
In 2021, North Carolina lawmakers redrew their congressional maps. The state had 13 districts at the time, and its voters were more or less evenly divided between Democrats and Republicans. But the Republicans who control North Carolina’s legislature didn’t want fair maps; they wanted power. In one of the most egregious gerrymanders in the nation, they drew 10 seats intended to favor themselves.
The North Carolina courts were not amused. A panel of three trial judges found that the 2021 maps were “intentionally and carefully designed to maximize Republican advantage” — so much so that Republicans could win legislative majorities even when Democrats won more votes statewide. The state Supreme Court struck down the maps, finding they violated the North Carolina Constitution’s guarantees of free elections, free speech, free assembly and equal protection.
That should have been the end of it: A state court applying the state constitution to strike down a state law. But North Carolina’s Republican lawmakers appealed, arguing that the U.S. Constitution does not give state courts authority to rule on their congressional maps — even though the legislature had passed a law authorizing the courts to review redistricting plans like these. Instead, the lawmakers are relying on an untested theory that asserts that state legislatures enjoy nearly unlimited power to set and change rules for federal elections.
To be clear, this is a political power grab in the guise of a legal theory. Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent. The idea that state lawmakers exist free of any constraints imposed by their constitution and state courts makes a mockery of the separation of powers, which is foundational to the American system of government. By the North Carolina lawmakers’ logic, they possess infinite power to gerrymander districts and otherwise control federal elections. It is a constitution-free zone where no one else in the state — not the governor, not the courts, not the voters through ballot initiatives — has any say.
In practice, the theory that the petitioners in the case are seeking to use would turn hundreds of state constitutional provisions into dead letters in federal elections. For instance, 48 states affirmatively guarantee a right to vote in their constitutions. (The federal Constitution still does not.) Most state constitutions guarantee free, fair, equal or open elections. Even the secret ballot — so fundamental to American democracy — is a creature of state constitutions. If the justices accept the most aggressive version of the independent state legislature theory that the petitioners want them to, and even if they accept a weaker version, provisions like these could become invalid overnight, because the theory holds that state constitutions have no authority to impose any regulations on federal elections.
The theory is based on bad legal interpretation. The framers who wrote the Constitution were concerned that state legislatures had too much power, not too little. The text they wrote makes many references to the powers of those legislatures and of Congress, but it never says or implies that they are immune to review by the judicial branch.
Moreover, if the Supreme Court accepts this theory, it will create a logistical nightmare in states across the country. That’s because the theory applies only to federal elections, not state elections, in which state courts unquestionably have a role to play. As a result, there would be two sets of rules operating at the same time, one for federal elections and one for state elections. Chaos and confusion would reign.
Most important, the Supreme Court has already implicitly rejected the theory many times over. In precedents stretching back decades, the court has made clear that state courts have the power to set limits on what lawmakers can do when it comes to federal elections. As recently as 2019, the court rejected a plea for it to stop the extreme partisan gerrymandering in North Carolina and other states. In doing so, Chief Justice John Roberts explained that this is exactly the role state courts should play. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote.
At Wednesday’s argument, Justice Samuel Alito appeared to reject that premise. He accused elected state court judges, like those in North Carolina, of being political actors themselves.
That so many justices would take the theory seriously is bad enough. Three of them — Alito, Neil Gorsuch and Clarence Thomas — appear to favor the independent state legislature theory, as they suggested in an opinion in an earlier stage of the case. Justice Brett Kavanaugh has also indicated his openness to it. It’s worse when the public trust in and approval of the court have fallen to historic lows, thanks largely to aggressively partisan recent opinions.
There’s an old saying that only close cases make it to the Supreme Court. If they weren’t close, they would have been resolved in the lower courts. But Moore v. Harper isn’t a remotely close case. A ruling for the North Carolina lawmakers would flood the federal courts with election litigation that normally plays out in the states, upending the balance of federalism that defines American government. That’s not a conservative result; it’s a dangerously radical one.