Moore v. Harper: Supreme Court hears case critical to federal election oversight

The US Supreme Court heard three-and-a-half hours of oral arguments on Wednesday in a case that could place control of federal elections entirely in the hands of state legislatures, removing nearly all oversight over these elections by state courts.

The case, known as Moore v. Harper, was filed by Representative Timothy Moore, speaker of the North Carolina House of Representatives after the North Carolina State Supreme Court rejected congressional districting maps drawn up by the state legislature as they illegally favored Republicans (also known as "political gerrymandering").

Moore and other Republican legislators from the state argue that the court doesn't have the authority to police the legislature on federal election matters due to an interpretation of the Elections Clause of the US Constitution known as the "independent state legislature" theory.

What is the Elections Clause?

The Elections Clause of the US Constitution states: "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 [choosing] Senators."

What is the 'independent state legislature' theory?

The theory interprets the clause as meaning that only the state legislature has the power to regulate federal elections and that state courts cannot interfere, even if they believe that the legislature's actions violate state constitutions or lead to gerrymandering.

Even if the theory is accepted by the Supreme Court, federal courts would likely still be able to weigh in on state regulations on laws, but state courts and regulators would largely be unable to intervene.

Republicans have brought the theory up multiple times in the past 20 years in order to challenge election results and regulations. 

In a case in 2015 that dealt with whether or not the creation of Arizona's Independent Redistricting Commission violated the Elections Clause, the Supreme Court ruled that nothing in the clause "instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution."

Chief Justice John G. Roberts, Jr. dissented from the majority's decision, maintaining that "under the Elections Clause, the state legislature can trump any initiative-introduced constitutional provision regulating federal elections." Roberts called the court's decision to interpret "the Legislature" as referring to the entire state legal system, including referendums, a "magic trick" and a "deliberate constitutional evasion."

In later opinions, Roberts did say that he was not condoning "excessive partisan gerrymandering" and listed state court decisions and legislation as options to combat the issue.

The court's opinion in the 2015 case warned that accepting Roberts' interpretation of the Elections Clause would also endanger a series of elections laws throughout the US which are determined by state constitutions (which were largely decided on by the people and not legislatures), such as voting by ballot or secret ballot, voter registration, absentee voting, vote counting and victory thresholds.

North Carolina AG: 'Case is among most consequential in the history of our nation'

After the oral arguments, North Carolina Attorney-General Josh Stein stated that “today’s case is among the most consequential affecting our democracy in the history of our nation.”

“The core question is this: who has political power in America? The people or the politicians? My office argues, and the North Carolina Supreme Court agrees, that the people possess all political power in North Carolina. The people of North Carolina must choose their representatives, not the other way around.”

“Unfortunately, North Carolina’s legislative leaders have embraced the radical so-called Independent State Legislature theory. They argued this morning that they can draw congressional districts however they wish – even in violation of the will of the people. For them it’s raw power over democracy, politicians over people.”

“I believe in the truth of our state Constitution – “All political power is vested in and resides in the people …[and] is founded upon their will only.” With this case, the Supreme Court faces a true test of its commitment to our democracy. I hope and pray that the justices pass that test and do not fail our nation.”

Common Cause and Southern Coalition for Social Justice (SCSJ), two of the respondents in Moore v. Harper, warned that the case “involves a dangerous, flimsy legal argument that seeks to eliminate long standing checks and balances and allow state lawmakers to exercise nearly unchecked power to manipulate federal elections.”

“The blast radius from their theory will sow elections chaos, forcing a confusing two-track system with one set of rules for federal elections, and another for state ones,” said Neal Katyal, a partner with Hogan Lovells and former acting Solicitor General of the United State, during oral arguments.  “Case after case would wind up in this Court with a political party on either side of the dais that will put this Court in a difficult position instead of leaving it to the 50 states.”

The direction the court was headed remained unclear on Wednesday with judges seemingly split on how they wished to rule on the case, according to US media reports. Articles in American media largely theorized that the court would either reject the independent state legislature theory or try and find a middle path. 

Experts express concerns that court would give legislators unchecked control over elections

Legal experts and Democratic legislators have expressed concerns that the court could accept the theory and that this would empower state legislators to have unchecked control over election processes.

An explainer article by the Brennan Center for Justice warned that accepting the theory could potentially nullify state constitutional provisions regarding federal elections, including bans on gerrymandering, independent redistricting commissions, secret ballots and other provisions.

It would also rob elections commissions and secretaries of states of the power to make decisions on elections, including in emergencies.

"The night­mare scen­ario is 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."

Ethan Herenstein and Thomas Wolf of the Brennan Center

"The night­mare scen­ario is 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," wrote Ethan Herenstein and Thomas Wolf in the Brennan Center explainer.

"Indeed, this isn’t far from the plan attemp­ted by Trump allies follow­ing his loss in the 2020 elec­tion. And, accord­ing to former federal judge J. Michael Luttig — a distin­guished conser­vat­ive jurist — the theory is a part of the 'Repub­lican blue­print to steal the 2024 elec­tion.'”

Lutting, a former justice in the US Court of Appeals for the Fourth Circuit, explained in an op-ed on CNN that former president Donald Trump and other Republican lawmakers attempted to use the independent state legislature theory to challenge a number of state election policies that had been instituted by bodies outside the legislature.

The justice explained how the Trump campaign then went further and appointed alternate fake electors who would vote for Trump despite not being chosen by voters. The campaign hoped to have the electors certified by the relevant states and then have their votes counted instead of the votes by the voter-certified electors. Under the independent state legislature theory, the state legislatures may have been to do so.

North Carolina speaker calls case 'critical to election integrity'

North Carolina's House speaker called the supreme court case "critical to election integrity" in July.

"This case is not only critical to election integrity in North Carolina, but has implications for the security of elections nationwide," said Moore. “On the heels of another victory at the US Supreme Court, I am confident that this court recognizes what our State Supreme Court failed to recognize— that the United States Constitution explicitly gives the General Assembly authority to draw districts and that authority must be recognized.”

Michigan State Senator Mallory McMorrow however warned that "If the Court applies this theory because Republicans control both legislative houses in 30 states, including swing states like here in Michigan, it allows them — and only them — the ability to choose how an election is decided, run, and what districts should look like."

"If the Supreme Court enshrines ISLT, it means Trump's Republican Party won't need a coup after the election to install him as President in 2024, they can just change the rules in swing states ahead of time to ensure they get the outcome they want," added McMorrow.