This essay is republished from the website of the Brennan Center for Justice. For more information on this topic, check out the recording of last week’s NC Policy Watch Crucial Conversation (which featured another Brennan Center expert) by clicking here.
What is Moore v. Harper about?
In Moore v. Harper, the Supreme Court will decide whether the North Carolina Supreme Court has the power to strike down the legislature’s illegally gerrymandered congressional map for violating the North Carolina Constitution. The legislators have argued that a debunked interpretation of the U.S. Constitution — known as the “independent state legislature theory” — renders the state courts and state constitution powerless in matters relating to federal elections.
Last year, North Carolina’s Republican-dominated state legislature passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. The gerrymander was so extreme that an evenly divided popular vote would have awarded 10 of the 14 seats to the Republicans and only four to the Democrats. The map was a radical statistical outlier more favorable to Republicans than 99.9999% of all possible maps.
Because the U.S. Supreme Court has ruled that federal courts cannot hear partisan gerrymandering cases, voters contested the map in state court, contending that the map violated the state constitution’s “free elections clause,” among other provisions. In February 2022, the North Carolina Supreme Court agreed with the voters and struck down the map, describing it as an “egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
The unrepentant legislature proposed a second gerrymandered map, prompting a state court to order a special master to create a fair map for the 2022 congressional elections. Unwilling to accept this outcome, two Republican legislators asked the U.S. Supreme Court to step in and reinstate their gerrymandered map.
What has happened so far in the case?
The Supreme Court hasn’t made any substantive rulings yet. In March, the Court rejected the legislators’ emergency appeal to put the gerrymander back in place immediately. At the urging of four justices, however, the legislators filed a regular appeal asking the Court to consider whether to reinstate their map for elections after 2022. In June, the Court agreed to take up the case. The parties will file briefs over the summer and fall, with oral argument happening thereafter. The Court will likely issue its decision before July 2023.
What are the gerrymanderers arguing before the Supreme Court?
In urging the Supreme Court to reinstate the gerrymandered congressional map, the North Carolina legislators are relying on an untenable misreading of the Constitution’s Elections Clause known as the independent state legislature theory.
The Elections Clause delegates to states the power to regulate federal elections while giving Congress the overriding authority to make or alter such laws. Proponents of the independent state legislature theory — like the gerrymanderers — read the Elections Clause to give state legislators near-exclusive authority to regulate federal elections, prohibiting any other state entity — like state courts or governors — from placing checks and balances on that power. In this case, the gerrymanderers are arguing that the theory licenses them to violate the state constitution when drawing congressional maps and that the state courts do not have the power to stop them.
What’s wrong with the independent state legislature theory?
The independent state legislature theory runs contrary to the constitutional text, history, practice, and precedent. Read more