WASHINGTON—Conservatives have long sought a conclusive legal decision that would define and cap the capacity of courts to issue rulings affecting how state legislatures administer elections.
North Carolina House Speaker Rep. Timothy Moore (R-Cleveland) believes that day will finally come next spring when the U.S. Supreme Court issues its decision in Moore v. Harper.
As he stood on the Supreme Court steps in a gray drizzle on Dec. 7, even a nearby brass band blaring Christmas tunes could not drown out his upbeat confidence that the court will place guardrails on “judicial activism” when deliberating challenges to state election laws.
Unlike state legislators, Moore said the state’s Supreme Court justices “got elected by nobody” and, therefore, unlike state legislators, are not accountable to ensure “the will of the people” is implemented.
So, when the state’s Supreme Court in 2021 disqualified the North Carolina General Assembly post 2020-Census congressional map as a “partisan gerrymander” prohibited under the state’s constitution, lawmakers with Moore as lead petitioner successfully appealed to the U.S. Supreme Court for a hearing.
They argue the Election Clause in the U.S. Constitution—Article 1, Section 4, Clause 1—gives state legislatures complete power in orchestrating elections within their states. Under this interpretation of the Constitution, called the Independent State Legislature doctrine, state courts cannot intervene in legislature’s redistricting process, they argue.
“It appears the court is very serious about weighing the arguments” presented by the North Carolina General Assembly during nearly three-hour oral arguments, Moore said.
The hearing, which doubled the allotted 90 minutes, was the first before the U.S. Supreme Court debating the validity of the Independent State Legislature doctrine.
Although widely rebuked by a host a bipartisan legal scholars—of 69 briefs filed in the case, only 16 support it—Moore said Independent State Legislature theory was debated more than 230 years ago in adopting the Articles of Confederation and U.S. Constitution.
“There’s nothing new about the Articles of Confederation and the Election Clause in the U.S. Constitution,” he said. “What has changed is the activist nature of the courts” with justices essentially co-opting the role of lawmakers to “make up something new” rather than follow the Constitution.
The North Carolina General Assembly was represented by David H. Thompson of Washington-based Cooper & Kirk, who cited textual and historical verifications of the theory and said the state’s Supreme Court actions in the case represented a substantive, rather than procedural, violation of the Constitution.
Thompson was opposed by two former U.S. Solicitor Generals—Neal Katyal and Donald Verrilli—and current U.S. Solicitor General Elizabeth Prelogar, each of whom cited other constitutional text and more than 200 years of court precedent in dismissing the theory.
“In 233 years, there’s been no reading of the Election Clause the way you just heard it,” said Katyal, describing North Carolina’s argument as claiming “for two centuries, nearly everybody was reading it wrong.”
Katyal, appointed acting U.S. Solicitor General during the Obama administration in 2017 to succeed Supreme Court Justice Elena Kagan in the post, was joined by Common Cause National Redistricting Director Kathay Feng and Southern Coalition for Social Justice attorney Allison Riggs on the courthouse steps after the hearing.
In making his 48th oral argument before the U.S. Supreme Court, Katyal said he was ”very gratified” by the court’s interest in the case.
“As expected, they asked tough questions,” he said, as they should when a petitioner presents a case that “rewrote 230-something years of history.”
Chief Justice John Roberts and justices Clarence Thomas, Samuel Alito, and Neil Gorsuch appeared most interested in independent state legislature theory. When asked if he thought the four had already made up their minds, Katyal said it did not appear so to him.
In his experience with the court, “they think things anew,” he said, noting the “question has really been teed up” for them, which means it will certainly be denied.
“The court has never done what [North Carolina lawmakers] are asking them to do,” Katyal said. “There can only be one conclusion.”
Riggs described North Carolina’s arguments as “an extreme position in an old argument” and said there was a “fundamental weakness” in their case regarding when to apply, or not apply, Independent State Legislature (ISL) theory.
“I’m not sure what version of the ISL they are speaking of,” she said, which is alarming since, “taken at face value,” under the theory, state legislatures could do away with the popular vote in presidential elections and just certify their own electors.
Untrue, said Moore, noting the North Carolina General Assembly filed the suit on behalf of the state’s citizens being essentially disenfranchised by judges.
”No. I don’t think that is a possibility,” he said. “At the end of the day, it’s about supporting the will of the people.”
This should not be a partisan issue, Moore stated.
“This is not about what will help Republicans, or what will help Democrats,” he said, maintaining even if the maps were drawn by a Democrat-controlled legislature, “my position would be the same.”
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