Moore v. Harper: Democracy’s Newest Challenger
On May 24, Alaska’s Supreme Court decided that a new district map drawn up by the state senate was “unconstitutionally” biased towards Eagle River, which leans Republican. Its order was a victory for fair and equal voting practices in the fight against radical partisanism. Now, with conservatives flexing a supermajority in the Supreme Court of the United States, there’s a chance that state courts nationwide won’t wield that power ever again.
The process of dividing states into electoral regions based on population ought to be a standard (boring) bureaucratic process. But when the Supreme Court ruled in 1964 that state legislatures must redraw districts every ten years in order to keep up with demographic changes, redistricting became a political issue. While Democrats have flirted with gerrymandering — the practice of drawing districts around race, class, and political lines in order to manipulate electoral power — Republicans are positively wedded to it. The Associated Press found “four times as many states with Republican-skewed state House or Assembly districts than Democratic ones,” creating a “real and alarming” threat to democracy.
That threat may soon become much worse. On December 7, the Supreme Court began hearing arguments for Moore v. Harper. This case concerns North Carolina’s state legislature, which passed a redistricting map ahead of the 2022 midterm elections designed to heavily favor Republicans. When the Supreme Court of North Carolina struck down two of these maps, calling them an “egregious and intentional partisan gerrymander” that jeopardized voter equality and violated North Carolina’s own constitution, Republican legislators appealed to the Supreme Court of the United States. While their petition was initially rejected because of its proximity to the midterms, Justices Kavanaugh, Gorsuch, Alito, and Thomas encouraged the legislators to resubmit it, and the court accepted the case.
The plaintiffs’ primary argument rests upon the Independent State Legislature (ISL) theory, which argues that the Constitution gives all state legislatures the right to regulate elections without any oversight from their state’s supreme court. ISL theory is derived from Articles 1 and 2 of the U.S. Constitution, which grant legislatures the right to regulate elections. As such, according to the plaintiffs, the biased district maps passed by North Carolina’s legislature should hold. Scholars have almost unilaterally rejected this idea. For centuries, American courts have interpreted these clauses to include constitutional regulations. Otherwise, state supreme courts would be powerless to uphold the constitution, which is their sole purpose, and state legislatures would go unchecked. This is “fatally inconsistent with basic precepts of both federalism and the separation of powers,” according to law professors Kate Shaw and Leah Litman. In fact, the Supreme Court itself rejected ISL theory as recently as 2015 in the majority opinion for Arizona State Legislature v. Arizona Independent Redistricting Commission.
If the court overturns that precedent now, (which is very possible given that four justices encouraged Moore v. Harper to be resubmitted), democracy will suffer. Even a mild approval of ISL theory might allow the Supreme Court complete authority over statewide election law while leaving more mundane functions to the state courts. As constitutional scholar Carolyn Shapiro describes, “instead of having state appellate courts and state supreme courts do what they have been doing for the past two and a half centuries, the Supreme Court [would be] able to come in and potentially second-guess those decisions.” This would be disastrous, turning the Supreme Court into an unending battleground for voter rights and plunging America’s elections into further chaos.
Depending on how much authority the majority opinion grants to state legislatures, a true nightmare scenario would involve state legislatures appointing electors to resist election results. Former federal judge J. Michael Luttig — a conservative himself — condemned ISL theory as part of a “Republican blueprint to steal the 2024 election.” Even if the majority dissents, Moore v. Harper still casts a shadow over U.S. democracy. When the Supreme Court, which accepts a mere 1 percent of the petitions it receives every year, reviews such an ahistorical argument, it sends the message that conspiracy theory is worthy of genuine consideration. The Founding Fathers intended none of these scenarios. In fact, most were notoriously hesitant to give state congresses too much power. The five conservative justices who identify as originalists have neglected this fact as quickly as they overturned a fifty-year-long precedent for abortion protection this July.
It seems that conservatives, having exhausted the political utility of originalism, are looking towards a more radical way to supplant their morality onto the states — and, worse still, onto the people.