MOORE V. HARPER: WHEN STATE SUPREME COURTS GO ROGUE
The Independent State Legislature Theory Will Not Be On Trial
In Moore V. Harper, The Supreme Court (SCOTUS) is not going to affirm the Independent State Legislature Theory (ISLT). Rather, it is likely to reject the State Supreme Court Supremacy Theory (SSCST) and strike down the North Carolina State Supreme Court’s opposition to the Legislature’s redistricting map for the House of Representatives.
In the field of Federal Elections, SCOTUS is going to assert dominance over the State Supreme Courts and curtail their attempts to behave like a state Legislature. A US District Court decision from 1985 in McIntyre v O’Neill could be an important cornerstone for their opinion.
This prediction is contrary to the most common narrative that Moore v. Harper is a test of the ISLT. This is the Brennan Center’s summary of the ISLT:
Proponents of the independent state legislature theory — like the gerrymanderers — read the Elections Clause to give state legislators near-exclusive authority to regulate federal elections, prohibiting any other state entity — like state courts or governors — from placing checks and balances on that power. In this case, the gerrymanderers are arguing that the theory licenses them to violate the state constitution when drawing congressional maps and that the state courts do not have the power to stop them.
SCOTUS Blog has a different framing of Moore v. Harper:
Issue: 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,” 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.
SCOTUS Blog has framed the debate as a power struggle between the State’s Judicial branch versus its Legislative branch. I believe that this framing will guide how the SCOTUS majority will rule on the dispute.
Background of Moore v. Harper
In 2022 the North Carolina Supreme Court struck down the Legislature’s redistricting plan on the grounds that it violated the “free elections” clause of the State’s Constitution.
Even though the North Carolina Constitution contains no express prohibition of partisan gerrymandering, the North Carolina Supreme Court manufactured one out of provisions that state simply:
· All elections shall be free
· The people have a right to assemble together to consult for their common good, to instruct their representatives
· To apply to the General Assembly for redress of grievances
· Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse
· No person shall be denied the equal protection of the laws
In the State Supreme Court’s view, its actions were justified because North Carolina is
[A] state without a citizen referendum process and where only a supermajority of the legislature can propose constitutional amendments. Accordingly, the only way that partisan gerrymandering can be addressed is through the courts, the branch which has been tasked with authoritatively interpreting and enforcing the North Carolina Constitution.
The Republicans took their case to Federal Court to argue that Article 1, Section 4 of the Constitution’s clause states that
“The Times, Places, and Manner of holding Elections…shall be prescribed in each State by the Legislature thereof….”,
and that the State Judiciary is not empowered to act as a Legislature to rewrite the rules for redistricting. Article 1, Section 4 reserves that authority to the Legislature, regulated by the State and Federal Constitutions.
Strengths and Weaknesses of the ISLT Critique
If SCOTUS’s decision relies upon the ISLT, then Vikram David Amar and Akhil Reed Amar offer the best arguments about why SCOTUS should uphold the North Carolina Supreme Court’s ruling against the Republican Legislature. Their 51-page essay is a meticulous argument against the ISLT. Amar’s argument is that State Constitutions restrain the actions of Legislatures, and the State Judiciary is empowered to be the final State arbiter of how that State Constitution is applied. The Framers understood this and therefore, would not have intended that Article 1, Section 4 be construed in a way that the State Legislature could rely upon it to violate its State Constitution. Therefore, the State Legislature is not independent of its State Constitution and its State Judiciary’s application of its provisions.
However, Amar opens a crack in his foundational argument when he grapples with this inconvenient fact (italics added):
[L]et us return to the key text of Article II. If, for all the reasons we have identified, the term “legislature” cannot mean “independent legislature,” why is it there? The most obvious explanation relates to efficiency and expense. The Framers knew that each of the thirteen then-existing states had an ordinary standing legislature, and Article II created a simple, inexpensive, and self-executing default that, unless a future state constitution specified otherwise by creating a special ad hoc legislative body or process, the state’s ordinary pre-existing state legislature would be the body to adopt federal election regulations. And, to repeat, nothing in the Federal Constitution suggests that the ordinary state legislature would have federal carte blanche to act in extraordinary ways contrary to the general rules limiting the legislature in the very state constitution that created and bounded that legislature.”
Unfortunately, this is not a very convincing explanation for the inclusion of Legislature thereof in Article 2, Section 1. If Amar’s theory were correct, then the Framers could just have easily written:
“Each State shall appoint a Number of Electors” and omitted the redundant clause “in such Manner as the Legislature thereof may direct.”
The fact that the Framers omitted use of Legislature thereof in Article 1, Section 10 is even more damning evidence that Amar’s theory is erroneous.
Article 1, Section 10
Article 1, Section 10 proscribes a list of things that States cannot do: make treaties, grant letters of Marque and Reprisal, coin Money, emit Bills of Credit, pass any Bill of Attainder or ex post facto Law, grant titles of Nobility, impair the Obligation of Contracts, lay import or export taxes, among other limitations.
The word Legislature is never used in Article 1, Section 10. It only mentions State. This is strong evidence that the Framers intentionally made a clear distinction between the totality of a state’s powers and responsibilities in contrast to the constituent parts of the state government making these decisions.
Article V Convention in States v. Legislatures
All of the amendments to the Constitution were ratified by the State Legislatures, except the 21st Amendment. Section 3 of this amendment repealing Prohibition, the 18th Amendment, read:
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
In contrast, the 22nd Amendment, like all the other amendments to the Constitution reads:
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
This anomaly proves that the Framers of the Constitution did not view the Legislature thereof in the manner that Amar is proposing. Otherwise, why would Article V provide two separate modes of ratification?
[W]hen ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress....
If Amar’s theory, (that the Legislature refers to the entire apparatus of law making in a State instituted by the voters through their Constitution that governs their legislative bodies and judiciary) is correct, then the Framers would not have made a distinction between ratification by Convention or by Legislature. Furthermore, Article V leaves the choice for the mode of ratification in the hands of Congress, not the State’s Constitution, Legislative bodies, judiciary, or its voters.
Article V of the Constitution requires 3/4ths of State Legislatures or “conventions of the States” for ratification of amendments to the Constitution. The fact that Article V lists two separate entities for ratification is proof that the voters, their State Constitution, and State Judiciary are not the approved authorities for ratification of amendments.
17th Amendment
Finally, the 17th Amendment assigns “the executive authority,” not the Legislature, the power to call a special election to fill a Senate vacancy. It also authorizes the legislature to empower the executive to make any temporary appointments prior to the special election.
Clearly, the Federal Constitution does not accept the supremacy of a State’s Constitution to regulate the method for selecting Senators, and filling vacancies. In Article V and the 17th Amendment, the Federal Constitution reaches inside the State’s structure to assign specific branches of state government with specific roles for Federal Elections and Amending the Constitution. The Federal Constitution does not see an equivalence between the State, its Legislature, and its Executive. Even if all branches of a State are governed by its State Constitution, that Constitution could not contradict the 17th Amendment by giving the State Legislature the power to make a temporary appointment for a Senate vacancy instead of its Governor, nor could it contradict Article V by requiring a voter referendum to ratify an amendment to the Federal Constitution.
The Political Question Doctrine’s Check Upon Judiciary
A U.S. District Court precedent from March 1, 1985 would be a helpful guide for SCOTUS’ opinion in Moore v Harper. In that decision (McIntyre v. O’Neill) the Court ruled that even though the Indiana Secretary of State certified the election of Republican Richard McIntyre as the winner of the 8th District seat in the House of Representatives in 1984, the Federal Constitution gave the Democrats the authority to overturn the election result and award the seat to his Democrat opponent, Frank McCloskey. A detailed account of the Bloody 8th saga can be read here.
There is a long history of the House intervening to overturn election results, mainly in the 19th century where Republicans disputed how Southerners interfered with Black Republican voters. As recently as 2020, Nancy Pelosi and the House Democrats threatened to overturn the election of Mariannette Miller-Meeks from the 2nd District of Iowa. Unlike the defenestration of Richard McIntyre in 1985, Miller was sworn into office while the Democrats pursued their investigation in their attempt to later overturn her victory. However, the Democrats gave up because of the obvious, blatant hypocrisy, given their own attacks on Republicans who disputed Biden’s election.
In its 1985 Decision, The US District Court found (italics added) that the Plaintiff, Richard McIntyre and other Plaintiffs…
[C]ontend that if, when judging the election of one of its Members, the House violates the due process clause of the fifth amendment or the freedom of speech and association provisions of the first amendment, those violations must be able to be redressed in Federal court. The Court disagrees with plaintiffs' assertions.
The very nature of the political question doctrine demands that a court abstain from interfering with a coordinate branch of government whose responsibility it is to make independent political choices. The doctrine demands that a court not immerse itself in a political matter which is principally in the dominion of a political branch of government. Although plaintiffs have alleged constitutional violations, the Court, in assessing these claims, must balance the strong institutional interests of separation of powers against the alleged constitutional deprivations. If the Court were to address the merits of plaintiffs' claim, it would, in effect, be substituting its judgment for that of the House of Representatives. The Court cannot and should not make that determination.
The US Federal Court refrained from opining about the injustice of the Democrats’ raw power move of overturning an election decided in accordance with Indiana State law. Instead, the Court deferred to the explicit language of Article 1, Section 5 which states that
“Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members….”
In this instance, the text of the Federal Constitution did not have to respect the procedures of the State of Indiana for selecting its own House members.
Likewise, the Federal Constitution imposes the same restraint upon the State Judiciary in political question matters like redistricting. Regardless of the language of a State’s Constitution, Article 1, Section 4 of the Federal Constitution is a check upon the State’s Judiciary, analogous to the language of Article 1, Section 5 that places a check upon the Federal Judiciary.
Conclusion
Vikram and Akhil Amar assume that SCOTUS will have to decide Moore v. Harper based upon the ISLT. An important aspect of their critique of the ISLT is that State Supreme Courts are included as part of the Legislature thereof, because State Constitutions give their Judicial Branch the authority to interpret their Constitution and review the laws passed by the Legislature.
Amar does not consider that State Supreme Courts could go rogue and overstep their judicial boundaries and usurp the role of the legislature. When confined to State elections and redistricting of State office districts, there may not be any recourse in the Federal Courts for a rogue State Judiciary, excepting an appeal to the Article 4, Section 4 guarantee of a Republican Form of Government for each State. However, when it comes to matters of Federal elections, Amar errs when he assumes that State Supreme Courts can always trump their legislatures. His entire argument rests upon this assumption of State Judicial Supremacy over the State Legislature, even regarding Federal Elections.
Article 1, Section 4 and Article 2, Section 1 do not support an ISLT that empowers a State Legislature to ignore its own State Constitution. However, by appealing to the Federal Judiciary, these Sections do give the State Legislature the power to curtail attempts by the State’s Judiciary or Executive Power to usurp legislative authority over Federal Elections granted in the Federal Constitution.
The 17th Amendment and Article V further recognizes the Federal Constitution’s allocation of authority to constituent parts of State government regarding the Federal Election of Senators and ratification of amendments.
The final stake in the heart of Amar’s argument is the application of the political question doctrine illustrated in the opinion of McIntyre v. O’Neill. If the Federal Judiciary shows deference to Congress, even when Congress engages in egregious behavior abusing their Article 1, Section 5 powers, then unless there are express prohibitions against Gerrymandering in the State Constitution, the State Judiciary must show the same deference to their own Legislature’s actions governing the redistricting of Federal House Districts in their State.