One of the cases the Supreme Court will hear next term is Moore v. Harper, an election redistricting case that arose out of the North Carolina Supreme Court’s decision earlier this year to strike down North Carolina’s congressional map. The map had been drawn following the 2020 census. It favored Republicans, and the court struck it down by a margin of 4–3. The court’s members are elected, and their split followed the tribunal’s political composition, with the four members who are Democrats comprising the majority.
That is the subject of the litigation before the U.S. Supreme Court and a brief just submitted by the attorneys for North Carolina state legislators, including their house speaker and senate president pro tempore, who are challenging the state supreme court’s decision in federal court. The majority, notes the petitioners, was unable to identify a single true conflict between the map and the state’s election laws. The court instead engaged in “unfettered policymaking,” concocting from state constitutional provisions’ open-ended guarantees of “free” or “fair” elections—or of equal protection and free speech among other unrelated rights—rules setting the amount of “permissible partisanship” for redistricting. And then, by fiat, the court created “a new congressional map.”
As Justice Samuel Alito wrote in a dissent from a denial of stay in the case earlier this year, “none of those provisions” on which the court relied for its ruling “says anything about partisan gerrymandering, and all but one make no reference to elections at all.” That one merely says “[a]ll elections shall be free.” It is a guarantee dating back to 1776 that lasted 246 years without any court finding it to prohibit partisan gerrymandering.
So what to do in the face of such an act of judicial fiat? The Elections Clause of the Constitution in Article 1, § 4, clearly provides that the “Times, Places and Manner of holding” congressional elections shall “be prescribed in each State by the Legislature thereof.” In this case, the brief asserts, North Carolina’s congressional elections are now “not to be held in the ‘Manner’ ‘prescribed . . . by the Legislature thereof,’ . . . but rather in the manner prescribed by the state’s judicial branch.”
The specific language of the Elections Clause begs close analysis when a state court so clearly defies its legislature. It would be a different matter if the Constitution said in more general terms that each state shall prescribe federal election rules. That is in fact what the earliest draft of the clause at the 1787 constitutional convention provided, but the Committee of Detail changed that language to specify that state legislatures would set the rules, not states as a whole. Another component of the Elections Clause empowers Congress to make or alter such rules as well, but there is no federal statute that stands in the way of the North Carolina redistricting process.
During the early years of the republic, few states purported to set federal election rules in their state constitutions, and no state court appears to have struck down a legislature’s congressional map, despite “[m]any early state constitutions includ[ing] similar ‘free’ or ‘equal’ elections guarantees.” North Carolina’s constitution never purported to confer substantial power to regulate congressional elections to its courts. It “does impose contiguousness and compactness requirements on state-legislative districts,” but “not . . . on congressional districts.”
The Left is rallying opposition to the North Carolina challenge in federal court with a campaign of disinformation and hysteria. They have labeled the argument behind the challenge the “independent state legislature theory.” They then put out the smear that, in the words of former Senator Doug Jones, its proponents want “the ability of state legislators to have absolute, total, unfettered control, unchecked control over elections” so that, among other things: “They can suppress the right to vote. They can subvert elections with no ability to challenge that in the court system. That is frightening. That is scary.”
Hearing that is scary. It is also wrong. By the clear language of Article One, also set out in the petitioners’ brief, the Constitution provides “congressional review” as “a check against any potential abuse.” As the brief acknowledges, the Constitution also limits both state legislatures and Congress. No map could engage in racial discrimination or breach any other federal laws, whether they stem from the U.S. Constitution or civil rights statutes. The “independent state legislature theory” should more appropriately be called the “constitutional elections theory.” The actual grievance of its critics is the failure to achieve legislative success on either the state or the federal level.
While echoing the fear of “more extreme voter suppression laws,” Robert Reich, who served as Bill Clinton’s secretary of labor, trumpets what might be the favorite liberal argument—that this theory would “let Republican-controlled state legislatures overrule the will of the people and pick the next president of the United States without you.” While this argument addresses the Constitution’s similar provisions governing presidential electors as opposed to the Elections Clause itself, it is worth considering for a moment. The dark-money Brennan Center touts this “nightmare scenario . . . that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors.” That scenario on its face depends on conflating the function of vote tabulation and election certification—which are done by a state’s executive branch—with the legislature’s role, which is limited to making the rules, not executing them.
Never mind how implausible that scenario would be, inviting the defeat of any legislators who would attempt such a thing the next time they are up for re-election: A state legislature, having authorized popular elections as the method of selecting presidential electors, cannot later abrogate such an election because it does not like the results. Among the constitutional problems such a scenario would face is that it would illegally subvert Congress’ determination of election day in November as the time when electors are chosen. But that does not stop activists and commentators on the Left, including former Attorney General Eric Holder, CNBC and MSNBC founder Tom Rogers, Thom Hartmann, Jamelle Bouie, and Adam Serwer, from piling on with this false scenario.
Another misleading argument that has become a fixture among critics including Holder, the Brennan Center, Ian Millhiser, Marc Elias, and even the League of Women Voters is the notion that the legislature would not be subject to the check of a gubernatorial veto. This is also wrong, and the petitioners’ brief acknowledges the legitimacy of such basic components of the legislative process as a gubernatorial veto, in addition to the dominant requirement that laws be bicameral, passed by both houses of the legislature.
Besides being reckless in their critiques, these activists are trying to stoke hysteria among all who would not give them their way: The theory they attack poses “an existential threat to our democracy” (Holder); “the greatest threat to our democracy since the Civil War” (Jones); and “a five-alarm fire for democracy” (Millhiser). “Democracy, as we know it in the United States, would cease to exist” (League of Women Voters). Former Democratic cabinet members like Reich and Holder give away their game by joining the career activists in calling for the Supreme Court to be packed with more seats.
If they really believe their own rhetoric, these demagogues can use a reality check. The legislature, not the judiciary—whether elected or not—is the consummate voice of the people. Those who seek particular election regulations have obvious recourse—to both their state legislatures and to Congress. Either body could provide them the remedies they seek.
The alarmism around Moore v. Harper comes from liberals who cherry-pick their grievances in states whose constituents favor Republicans and selectively use liberal activist state courts to give Democrats advantages they cannot get democratically. They are fine with partisan gerrymandering in states that favor Democrats. Their rhetoric about democracy is part of a con job, and the Left’s disinformation campaign serves as a subterfuge to distract their audiences from the reality that their true grievance is not on behalf of the people. It is that their strategy of jerry-rigging otherwise lost elections through renegade courts might soon come to an end.