by Diane Dimperio
Note: This is a follow-up to this article published in August, 2022.
Moore v. Harper
“Moore v. Harper is the most important case for American democracy in the nation’s history”
according to Michael Luttig, a prominent conservative (Sherman, 2022). Judge Luttig, who is not known for hyperbole, is expressing the alarm many are experiencing about this case.
Timothy Moore is the Speaker of the North Carolina House of Representatives. Moore and his colleagues (The Moore parties) claim the Supreme Court of North Carolina’s ruling, which overturned the highly partisan congressional map drawn by the NC Legislature, violated the U.S. Constitution. They assert State Legislatures have complete authority to make decisions regarding federal elections of Senators and Representatives, which includes drawing districts.
The Moore parties base their case on the Independent State Legislative Theory (ISLT). This theory depends on the word “Legislature” in Article One of the U.S. Constitution being interpreted to mean the kind of lawmaking body they represent. For the last 235 years, the term “Legislature” in Article One has been interpreted to mean the “State” which includes the state constitution, laws, and courts.
To support their position, the Moore parties cite a document written by Charles Pinckney in 1818. This document supposedly proves that the framers of the Constitution (framers) changed the word “State”, which was in the initial version, to “Legislature”. Although Pinckney attended the Constitutional Convention, the document he submitted at the time has been “lost to history” (Herenstein & Palmer, 2022). More than 30 years after the Constitution had been signed, Pinckney produced a document he claimed was his original plan and proved the constitution intended to empower state legislators with control over federal elections. James Madison, one of the main authors of the Constitution, said he was “perfectly confident” the document released in 1818 was not the draft Pinckney originally presented at the Convention. Madison mounted a detailed “refutation” of the Pickney document which historians widely agree is not an authentic record (Herenstein & Palmer, 2022).
Two groups oppose the ISLT. One is composed of the original group of voting rights groups which filed the case and the other includes North Carolina state entities. The voting rights groups include Common Cause, the North Carolina League of Conservation Voters, and individual voters. (Rebecca Harper of Moore v. Harper is a board member of Common Cause.) They argue that a state legislature is always “constrained by the [state] constitution that created it” and the framers drafted the Elections Clause “understanding that state courts...ensure conformance with state constitutions”. They allege Moore’s interpretation of the U.S. Constitution is “antithetical” to the framer’s intent and represents “a radical departure from the most fundamental principles of the very constitution the framers had convened to write.” They also point out that a key document of the Moore case is a “fake” (Brower & Champion, 2022).
The State of North Carolina and elections officials filed a separate brief against Moore focusing on state laws that authorize judicial review of congressional maps passed by the General Assembly (Brower & Champion, 2022).
There have been 69 amicus briefs submitted regarding the case, most of them (48) arguing against the ISLT. Many of the briefs arguing against Moore were submitted by prominent conservatives and include high-ranking state and federal officials, as well as attorneys and judges (Wolf & Sanchez, 2022). The League of Women Voters US submitted a brief arguing against ISLT which included participation of Leagues from all 50 states plus the District of Columbia.
Notable among the amicus briefs is one submitted by The Conference of Chief Justices, which represents the Chief Justices of the highest courts in all 50 states. Since they rarely comment on cases many hope the meticulous dissection of the lack of historical support for the ISLT and its conflicts with SCOTUS precedents will influence the Justices (Wolf & Sanchez, 2022).
The small group supporting Moore includes state attorneys general of some conservative states, partisan political organizations, and think tanks. “Election deniers” are also among the supporters of ISLT (Wolf & Sanchez, 2022).
Predicting the Outcome
The case was argued on December 7, 2022, but the ruling is not expected until June or July of 2023. Veteran SCOTUS watchers warn against predicting the outcome based on comments and questions from Justices during the arguments, but some observations can be made.
Justices Alito, Gorsuch, and Thomas voted to hear the case when it was first brought to SCOTUS and have, prior to the hearing, made comments suggesting their support for the ISLT (Sherman, 2022). Justice Alito, in an attempt to quell the onslaught of criticism of the ISLT, went so far as to say, “Under any circumstances, no matter what we say the ‘Elections Clause’ means, Congress can always come in and establish the manner of conducting congressional elections” (Okun, 2022). Their comments during the hearing were consistent with prior comments. Justices Thomas, Alito, and Gorsuch are expected to rule in support of ISLT.
The three justices considered to be more progressive, Sotomayor, Kagan, and Jackson-Brown, conveyed concern about the ISLT. During the hearing, Justice Kagan said the ISLT
“gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most” (Editorial Board, 2022).
The consensus is the final ruling depends on Justices Roberts, Kavanaugh, and Barrett (Montellaro & Gerstein, 2022). However, in remarks prior to hearing the case Justice Kavanaugh suggested there is a need for federal courts to “police the actions of state courts when it comes to federal elections” (Sherman, 2022). Justices Roberts and Barrett have not made any statements prior to or during the hearing that signaled how they might rule.
The final ruling could range from a rejection of ISLT to a broad ruling in support. A robust ruling could undermine more than 170 state constitutional provisions, over 650 state laws, and thousands of state and local regulations (Sherman, 2022; Wolf & Sanchez, 2022). Even a narrow ruling would potentially invalidate the guarantees of fair and free elections that most states mandate in their constitutions (Editorial Board, 2022).
The League of Women Voters is a political, non-partisan organization, which expresses opinions only after careful study of issues. Their comments on Moore v. Harper include the following.
“In creating the U.S. Constitution, the framers were intentional about establishing a checks and balances system to disrupt any one branch of government from becoming too powerful...Because state courts have been vested in the salient role of deciding disputes that govern our daily lives, any unraveling of this longstanding balancing would be a dangerous and historic blow to democracy as we know it” (Augustus, 2022).
An alarming question being asked about Moore v. Harper is why the case was accepted by the Court. SCOTUS has rejected the ISLT in precedents going back decades. It has consistently supported limits State courts have imposed on efforts of state legislatures to make decisions on federal elections. As recently as 2019, SCOTUS rejected a case involving partisan gerrymandering by legislators and sent it back to the state courts. Chief Justice John Roberts wrote, “Provisions in state statutes and state constitutions can provide standards and guidance for courts to apply” (Editorial Board, 2022).
There is a final unsettling observation on the case. As described above, the case revolves around the interpretation of the word “Legislature” in Article One of the U.S. Constitution. It should be noted that Article Two includes the following language about electing the President of the United States. “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”. The issue of presidential electors was not addressed by either side during the argument, but Justice Kagan warned the parallel language in Article Two
“…might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated” (Montellaro & Gerstein, 2022).
The case of Moore v. Harper was added to the SCOTUS docket, amicus briefs were submitted, and the case was argued. We can only wait to see how SCOTUS will rule. The results will be in place for the 2024 elections, so we will have an opportunity to see if the ruling affects the ability of voters to participate in free and fair elections.
References
Augustus, S. (2022, October 26). League of Women Voters Files Amicus Brief in Moore v. Harper. League of Women Voters Press Release. https://www.lwv.org/newsroom/press-releases/league-women-voters-files-am...
Brower, M., & Champion, E. (2022, December 1). Moore v. Harper: A Dangerous Theory Has Its Day in Court. Democracy Docket. https://www.democracydocket.com/analysis/moore-v-harper-a-dangerous-theo...
Editorial Board. (2022, December 9). This case should have never made it to the Supreme Court. The New York Times. https://www.nytimes.com>supreme-court-moore-v-harper
Herenstein, N., & Palmer, B. (2022, September 15). Fraudulent Document Cited in Supreme Court Bid to Torch Election Law. Politico. https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-su...
Montellaro, Z., & Gerstein J. (2022, December 7). Supreme Court seems poised to reject robust reading of ‘independent state legislature’ theory. Politico. https://www.politico.com/news/2022/12/07/supreme-court-independent-state...
Okun, E. (2022, December 7). POLITICO Playbook PM: SCOTUS skeptical of elections theory. Politico. https://www.politico.com/newsletters/playbook-pm/2022/12/07/scotus-skept...
Sherman, M. (2022, December 4). Supreme Court weighs ‘most important case’ on democracy. AP News. https://apnews.com/article/us-supreme-court-north-carolina-legislature-5...
Wolf, T., & Sanchez, G. (2022, December 1). Friends of the Court Weigh In on the ‘Independent State Legislature Theory. Brennan Center for Justice. https://www.brennancenter.org/our-work/analysis-opinion/friends-court-we...
