Before departing for its summer recess, the U.S. Supreme Court agreed to take up Moore v. Harper, a redistricting dispute between North Carolina’s legislature and Supreme Court. The latter struck down two congressional maps enacted by the former and then imposed its own redistricting scheme. The North Carolina General Assembly petitioned SCOTUS to rule that this violated the U.S. Constitution. Predictably, the mere fact that the justices agreed to hear the case at all has produced panic among Democrats and a deluge of dire predictions about the death of democracy.
Harvard law professor Laurence Tribe warns, “Adopting the independent state legislature theory would amount to right-wing justices making up law to create an outcome of one-party rule.” Sen. Sheldon Whitehouse (D-R.I.) predicts, “If accepted, this extreme theory would lay the groundwork to allow rogue state legislatures to overturn the will of the people in future elections.” The Democratic Association of Secretaries of State issued the following hysterical statement: “The Supreme Court’s decision to hear the ‘independent state legislature’ theory behind the Moore v. Harper case brings us one step closer to a judicial coup.”
You will note that the above-quoted harangues focus on a single constitutional hobgoblin — the independent state legislature doctrine (ISL). Despite all the hyperbole, ISL is neither new nor radical. The doctrine has been applied on various occasions during the 19th and 20th centuries. Indeed, the U.S. Supreme Court relied on ISL a century ago to uphold the constitutionality of the 19th Amendment. Leser v. Garnett challenged the right of some legislatures to ratify the amendment because their state constitutions explicitly limited suffrage to males. Writing on behalf of the Court, Justice Louis Brandeis said:
[I]n the Constitutions of several of the 36 states named in the proclamation of the Secretary of State there are provisions which render inoperative the alleged ratifications by their Legislatures. The argument is [that] by reason of these specific provisions the Legislatures were without power to ratify. But the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.
This captures the essence of ISL: The U.S. Constitution directly confers certain powers on the legislatures, and states have no authority to infringe upon them. That is precisely the argument the North Carolina legislature is making in Moore v. Harper. The legislature adopted a congressional map pursuant to the 2020 census, whereupon a swarm of Democratic attorneys descended on the Tar Heel state like so many flying monkeys and began filing lawsuits. A lower court nonetheless upheld the map, but the state’s Democrat-dominated Supreme Court reversed that ruling and usurped the legislature’s redistricting function.
This illustrates the actual reason Democrats object to ISL. It would clip the wings of the flying monkeys by depriving them of the ability to weaponize state courts against state legislatures. In 2022, Democratic attorneys have filed dozens of lawsuits in state courts challenging legislative redistricting maps. The “nonpartisan” Brennan Center for Justice reports that 72 cases have been filed in 26 states. Leading this assault is controversial election attorney Marc Elias. He objects to ISL on the grounds that it interprets the term “legislature,” as it is used in the U.S. Constitution’s election clause, to mean … well … “legislature.” He writes,
The independent state legislature (ISL) theory is a right-wing constitutional theory about who has the power to set rules for federal elections. The theory interprets the word “legislature” in the U.S. Constitution to mean that state legislatures — and only state legislatures — can make laws regulating federal elections. This differs from the standard interpretation, in which “legislature” means the state’s general lawmaking process, which includes the governor’s veto, citizen-led ballot measures and rulings of state courts.
Unfortunately for Elias and others who make this claim, the Constitution is nowhere near as ambiguous as he suggests. Article I, Section 4, Clause 1 reads as follows: “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, except as to the Places of chusing Senators.” Conspicuously absent from the elections clause is any nuance involving “the governor’s veto, citizen-led ballot measures and rulings of the state courts.” For the Framers, “legislature” meant “legislature.”
It’s a good bet that at least five of the Court’s justices will read the word literally. At least four had to agree to hear the case before certiorari was granted. They probably didn’t struggle to decode “legislature.” Moreover, Justices Alito, Gorsuch, Kavanaugh, and Thomas have all expressed some level of affinity for ISL in various concurring and dissenting opinions. Indeed, Alito wrote in a recent dissent that the Court “will have to resolve this question sooner or later, and the sooner we do so, the better.” Chief Justice Roberts is still struggling with a definition for “tax,” thus the deciding vote on Moore v. Harper will likely be cast by Justice Barrett.
Unfortunately, the Court won’t decide the case until its next term. That means Marc Elias and the other flying monkeys will create as much chaos as possible during the upcoming midterms. The question will, however, be resolved by 2024, and that clearly worries the Democrats. If the North Carolina legislature prevails in Moore v. Harper, it will become far more difficult for state courts or officials to meddle with election laws passed by duly elected state legislatures. That may be a threat to the Democrats, but it will be very good for Democracy.