The case Moore v. Harper concerns the elections clause in Article I, section 4 of the Constitution and whether state legislatures alone are empowered by the Constitution to regulate federal elections without oversight from state courts.
On November 4, 2021, the North Carolina General Assembly adopted a new congressional voting map based on 2020 Census data. The legislature, at that time, was controlled by the Republican Party. In the case Harper v. Hall (2022), a group of Democratic Party-affiliated voters and nonprofit organizations challenged the map in state court, alleging that the new map was a partisan gerrymander that violated the state constitution. On February 14, 2022, the North Carolina Supreme Court ruled that the state could not use the map in the 2022 elections and remanded the case to the trial court for further proceedings. The trial court adopted a new congressional map drawn by three court-appointed experts.
How The Case Landed in the Supreme Court
On February 25, 2022, prior to the state's primary election on May 17, Republican state legislators filed an emergency appeal with the U.S. Supreme Court, asking to halt the state court's order until SCOTUS could review the case. The court denied the request. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented. In the dissent and in a concurrence by Justice Brett Kavanaugh, the justices stated that the independent state legislature doctrine was an important question for the court to resolve.
On March 17, 2022, Speaker of the North Carolina House of Representatives Timothy K. Moore (R) filed a petition for a writ of certiorari in the case. The court granted review on June 30, 2022.
The issue: The case concerns the elections clause in Article I, section 4 of the Constitution and whether state legislatures alone are empowered by the Constitution to regulate federal elections without oversight from state courts. Click here to learn more about the case's background.
The questions presented: "Whether a State's judicial branch may nullify the regulations governing the "Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof," U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts' own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a "fair" or "free" election."
The outcome: The appeal is pending adjudication before the U.S. Supreme Court.
Why it Matters:
If the court rules in favor of the petitioners, the power and authority to regulate federal elections would become more concentrated in state legislatures and with the federal judiciary in the event of appellate review. When the case was granted, Republicans controlled 54.10% of all state legislative seats nationally, while Democrats held 44.32%. Republicans held a majority in 62 chambers, and Democrats held the majority in 36 chambers. One chamber (Alaska House) was organized under a multipartisan, power-sharing coalition.
Moore v. Harper: The Independent State Legislature Theory
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Moore v. Harper
'The Independent State Legislature Theory'
Supreme Court Alert
Moore concerns the “independent state legislature” theory: the idea that the Constitution grants state legislatures some level of special authority in administering federal elections that may not be constrained by state courts or perhaps even state constitutions. The idea is, to put it mildly, contested. The conservative jurist J. Michael Luttig, who recently signed on as co-counsel for litigants opposing the independent state legislature theory in Moore, has argued in The Atlantic that Moore represents “the most important case for American democracy in the almost two and a half centuries since America’s founding” and cautioned that the theory is a key part of “the Republican blueprint to steal the 2024 election.” Former Attorney General Eric Holder warned that, depending on how the Court rules, Moore could pose “an existential threat to our democracy.”
By Quinta Jurecic, TheAtlantic.com
Welcome. Thank you for responding to our Supreme Court Alert. On December 7, 2022, the Supreme Court will hear oral arguments concerning the Moore v. Harper case. As the case involves the interpretation of the Constitution on whether state legislatures alone can regulate federal elections without state court oversight, its implications for overturning states' presidential elections are as foreboding as the four Supreme Court justices already expressing their desire to hear the case. How this case could affect the outcome the 2024 presidential elections lie at the heart of a SCOTUS decision.
More Background Information from the Carolina Journal:
The U.S. Supreme Court will hear the case of Moore v. Harper in late 2022, with a decision expected about a year from now in the summer of 2023. The case is being pursued by Republicans in the North Carolina General Assembly that argue the North Carolina State Supreme Court’s Democrat majority violated the state constitution’s elections clause by twice rejecting congressional districts enacted by the legislature and eventually imposing court-drawn districts on the people of North Carolina.
The question presented by the General Assembly to the U.S. Supreme Court
Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.
Independent State Legislature Doctrine
As reported by Carolina Journal:
State legislative leaders filed a petition on March 17 asking the U.S. Supreme Court to take the case. That paperwork arrived 10 days after the court had voted, 6-3, to reject an emergency petition. A successful emergency petition would have blocked the current court-ordered election map from being used for 2022 U.S. House contests.
On March 7, Justice Brett Kavanaugh indicated that he agreed with dissenting Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas that the court should address the issue of state courts’ role in addressing state legislatures’ decisions about redistricting.
It takes “yes” votes from four of the nine justices for the U.S. Supreme Court to agree to hear a case.
The case will pursue a legal theory called “independent state legislature doctrine,” which suggests that, under the Constitution’s election clause, “only the legislature has the power to regulate federal elections, without interference from state courts.”
This argument is based on two clauses in the Constitution that assign to the legislature of each state the job of identifying the “Manner” of appointing presidential electors and the “Times, Places and Manner” of congressional elections.
In Smiley v. Holm, the Supreme Court defined the use of the term legislature to mean the state’s legislative process, including a governor’s signature or veto override. In Arizona Independent Redistricting Commission v. Arizona Legislature, the high court held in 2015 that voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. The majority saw voters passing legislation via initiative as part of that legislative process.
However, the North Carolina General Assembly and at least some of the conservative members of the General Assembly see the issues differently.
As explained in the filing, seeking a writ of certiorari to review the judgment of the North Carolina Supreme Court, the General Assembly wrote:
“The Constitution directs that the manner of federal elections shall “be prescribed in each State by the Legislature thereof.” U.S. CONST. art. I, § 4, cl. 1. “The Constitution provides that state legislatures”—not “state judges”— “bear primary responsibility for setting election rules,” including the rules establishing the shape of congressional districts.
As this Court recently explained, “[t]he Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.”
Yet in the decision below, the North Carolina Supreme Court decreed that the 2022 election and all upcoming congressional elections in North Carolina were not to be held in the “Manner” “prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, but rather in the manner prescribed by the state’s judicial branch.”
Justice Neil Gorsuch wrote in a 2020 concurring opinion in a case concerning the deadline for casting mail-in ballots in Wisconsin, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
According to Vox:
Four justices — Gorsuch, plus Clarence Thomas, Samuel Alito, and Brett Kavanaugh — have all endorsed some version of this independent state legislature doctrine. Meanwhile, four other justices, the three liberal justices plus Chief Justice John Roberts, have signaled that they will not overrule the Court’s many precedents rejecting this doctrine.
Vox opined the deciding vote on the case could be in the hands of Justice Amy Coney Barrett.
ORAL ARGUMENT OF DAVID H. THOMPSON ON BEHALF OF THE PETITIONERS
MR. THOMPSON: Mr. Chief Justice, and may it please the Court:
The Elections Clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures' substantive discretion when performing this federal function.
As Alexander Hamilton wrote in Federalist 78, the scope of legislative
authority is governed by the commission under which it is exercised. Here, that commission is contained in the United States Constitution, and it is federal law alone that places substantive restrictions on state legislatures performing the tasks assigned them by the federal constitution. The most prominent discussion of the Elections Clause in the early republic occurred during Massachusetts' 1820
Constitutional Convention. Joseph Story, then a sitting Justice on this Court, explained that a proposed constitutional amendment requiring
representatives to be elected in districts would violate the Elections Clause because that clause vested state legislatures "with an unlimited
discretion in the subject." Justice Story's view was an echo of
Alexander Hamilton's father-in-law, Senator Philip Schuyler, who took the exact same position on behalf of the entire New York State Senate just one month after the ratification of the Constitution. And for the first 140 years of the republic, there was not a single state court that invalidated on substantive grounds any congressional redistricting plan. This Court's decision in Leser teaches that the founders tasked state legislatures with
the state. And I welcome the Court's questions.
JUSTICE JACKSON: But can I ask you a question? Can I ask you a question, because you -- you -- you suggest that there's this thing called the legislature that the framers were familiar with, and I'm trying to understand why what counts as the legislature isn't a creature of state constitutional law.
MR. THOMPSON: Well, Your Honor, I -- I think this Court in Arizona did say that the states have a lot of flexibility in terms of defining what state legislature means, but what Arizona did not say is that there could be
JUSTICE JACKSON: But -- but -- well, I don't understand how that's a different thing. In other words, if the state constitution tells us what the state legislature is and what it can do and who gets on it and what the scope of legislative authority is, then, when the state supreme court is reviewing the actions of an entity that calls itself the legislature, why
isn't it just looking to the state constitution and doing exactly the kind of thing you say when you -- when you admitted that this is really about what authority the legislature has? In other words, the authority comes
from the state constitution, doesn't it?
MR. THOMPSON: No, Your Honor, it's a federal function, and we know that from Leser. So this Court in Leser held it's a federal function. When these duties are assigned to the states, that is a duty that is assigned by the federal --
JUSTICE JACKSON: Yes, it's a duty. The duty is to make this legislative
My question is, where does the entity's power come from to make any
determinations at all, right? I mean, yes, I see that the federal Constitution is giving them the right to make a particular determination,
but they're not giving just anybody in the state that right. They're giving somebody called the legislature and, in order for us to have a thing
understand how the legislature is authorized to act at all.
ORAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE PRIVATE RESPONDENTS
MR. KATYAL: Thank you, Mr. Chief Justice, and may it please the Court:
For 233 years, states have not read the Elections Clause the way you just heard. There are two reasons to affirm. One is that when enacting legislation, there's no such thing as an independent state legislature.
The other is that North Carolina statutes authorize what the North Carolina court did, all focus on the first. Petitioner's idea that state
legislatures created by state constitutions are independent of them is wrong. It is rejected by the Articles of Confederation, rejected by the
early state constitutions, rejected by the founding practice, especially New York, where judges vetoed federal election bills.
It's also rejected by this Court in cases such as Smiley and Hildebrand. Just three years ago in Rucho, this Court promised state constitutions can provide standards for state courts to apply and singled out for approval a Florida court decision that used a state constitution to invalidate a federal map.
To accept Petitioner's claim, you'd have to ignore the text, history and structure of our federal Constitution as well as nearly every state constitution today. Petitioners say for two centuries, nearly everyone has been reading the clause wrong. That's a lot of wrong, and a lot of wrong past elections. Frankly, I'm not sure I've ever across a theory in this Court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today.
It's worth taking a pause to think about what Petitioners are saying. They claim the word "legislature" means a species of state law that has literally never existed. State law making, unconstrained by a state constitution, that the founders intended to create that animal, surely someone would have said something. Finally, the blast radius from their
theory would sow elections chaos forcing a confusing two-track system with one set of rules for federal elections and another for state ones. Case after case would wind up in this court with a political party on either side of the V. That would put this Court in a difficult
position instead of leaving it to the 50 states.
Mr. Katyal, would you spend some time on discussing the source of the
state court's involvement in a federal election.
MR. KATYAL: Yeah, we --
JUSTICE THOMAS: I understand the Court is created under state constitution, but this is a federal matter.
MR. KATYAL: Correct, and we for reasons Justice Kavanaugh said, Your Honor, think that Palm Beach basically says there is sort of federal issue here with respect to Elections Clause, and we think obviously the
state court got it right and didn't violate the Elections Clause, but we think that's the source of authority here.And, Justice Thomas, if I may, in two
decades of arguing before you, I have waited for this precise case because it speaks to your method of interpretation, which is history. And
the founding evidence here is overwhelming, and I'd point you to four things. First, the Constitution uses the same word, legislatures, as the Articles of Confederation, and 10 state constitutions under the Articles regulated federal delegates.
Second, after the Constitution was ratified, states kept regulating it. States like Delaware and Maryland and Mississippi expressly regulated federal elections, as did three quarters of the states. Third, New York in 1792, this example really important, I think it's truly action as opposed to the talk from Schuyler and Justice Story. In 1792, the council revision, which has four people on it, three judges, one governor, vetoed a federal elections bill for the selection of delegates to the House of Representatives. It was a time, place, manner thing. Why did they -- why did they veto it? They said because it is "repugnant to the state
constitution." That is very strong evidence. That's exactly the example you used in Smiley to build your decision there. And lastly and most importantly, the dog never barked. The Federalist Papers have
three different Federalist Papers on everything he's been talking about the Elections Clause. Not a person said anything like that they were
trying to create this strange animal. This isn't looking like into a crowd and trying to pick out your friends. This is like looking into the Lollapalooza crowd and picking out everyone who speaks 15 languages.
JUSTICE GORSUCH: Right. That's --that was a Lollapalooza.
It is a small point, but, on Smiley, on -- on the veto question, just narrowly on the veto question, you know, Locke, Montesquieu, The Federalist Papers treat that as a legislative power and -- and a sharing of the legislative power. And it's in Article I, which kind of suggests it's -- the founders considered it a legislative power. So I -- I guess I'm a little
less moved by -- by -- by that Lollapalooza than you are. Maybe you can help me out, though.
MR. KATYAL: Sure. Of course. And I think it's reflective in the Chief Justice's comments to my friend on the other side. There is certainly something legislative there, but I think that the overall point of Smiley is to say -- and my friend says this in the reply brief at page 6 -- you take legislatures as you find them. He agrees with that proposition. That's
what Smiley did as well. The legislature as it found -- as it was found in Minnesota in Smiley was --
Excerpts from the Oral Arguments: Moore V Harper 12.7.2022