So you may be wondering, what is Moore v. Harper? This groundbreaking case has been going on for over a year now, and when its final verdict comes out this year, it will have major implications for voting rights for many Americans. In 2021, the Republican-led North Carolina state legislature passed a bill that gerrymanders districts to create a state supermajority for their 14 seats. The map gives the Republicans a 99.9% chance of retaining their majority. The state voters were very unhappy with this and decided to contest this map in state courts, as there was a Supreme Court precedent that stated that federal courts cannot hear partisan gerrymandering cases. They contended that this map violated the North Carolina state constitution’s free election clause. At the time, the North Carolina Supreme Court had a Democrat majority within their elected court.
The North Carolina Supreme Court agreed with the voters and struck down the map stating that it was an “egregious and intentional partisan gerrymander designed to enhance Republican performance and give a greater voice to those than others”. The legislature created another map, however, the North Carolina Supreme Court asked them to make a fair map for the 2022 congressional elections. Two Republican legislators took issue and asked the Supreme Court to reinstate the gerrymandering map, and their reasoning was to support the independent legislature theory. The independent legislature theory is where the state courts and constitution are rendered powerless in federal elections. This theory pushes an argument that when it comes to the state legislatures creating state laws, only the state legislature has the power to set the rules. It disregards the requirements of their own state constitutions, as we see with the ignoring of the fair districting requirements imposed by the North Carolina Supreme Court. If the argument of the Republican legislators from North Carolina is approved, state courts, governors, and redistricting commissions may lose the power to veto or draw congressional maps. State legislatures would have broad and unchecked power, giving them the opportunity to implement otherwise illegal election rules.
I talked to Professor Toni Marsh, a constitutional law professor at George Washington University and a member of the DC Supreme Court Bar, about the implications of Moore v. Harper. Marsh stated that by untethering the state legislatures to their state constitutions, party majorities within the state legislatures are given unlimited power to create supermajorities. This can keep members of the party in power for a long time and in this case, Republicans could undermine the votes of Democrats by gerrymandering maps at their own discretion. A popular argument that is heard by supporters of the independent state legislature is that the Framers intended the state legislature to control the laws for elections citing Article 1 Section 4, where it states that “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.” However, Marsh retorts that the Framers intended on creating a system of checks and balances, so they would not have wanted a legislature to be able to draw maps without any checks.
When I asked her about the implications that this case had on voting rights, she stated that “this could have implications as apathy across the Democratic voter base in North Carolina could arise and the voices of the Democrat base would be drowned out”. Marsh was able to attend the oral arguments and felt heartened, believing that the Supreme Court was not going to buy the argument in relation to independent state legislature theory. One of the moments she picked out was when Justice Ketanji Brown Jackson stated that the “legislature is a creature of the state constitution”. This means that the legislature is the executor of the state constitution, and they are already intertwined. Following my discussion with Marsh, I feel more confident about the potential resolution of this case. However, the stakes could not be any higher.
Currently, Moore v. Harper is being reconsidered by the Supreme Court. The once 4-3 Democrat majority within the North Carolina Supreme Court has been changed to a 5-2 Republican majority. The North Carolina state legislature petitioned for the North Carolina Supreme Court to hear the case. On March 14, 2023, the case was reheard by the North Carolina Supreme Court. The Supreme Court is currently collecting briefs as both parties are contesting the jurisdiction of the Supreme Court in regard to deciding this case. According to Marsh, Moore v. Harper could be put on the docket and heard so that the Court can rule on independent legislature theory as applied in an institutional sense. In an extreme sense, Moore v. Harper could change the fabric of our democracy for the worse and take away representation for many people. This is not just a potential loss for both parties but a potential attack on a basic principle of our democracy: 1 person 1 vote.
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