This one’s bad folks. Very, very bad.
During the court cases leading up to the 2020 election I noted this interest among the right wingers on the court in the Independent State Legislature Doctrine, which had been waved at in Bush v Gore by Rhehquist and Scalia. It’s happening, people:
The Supreme Court’s announcement on Thursday that it will hear Moore v. Harper, a case that could concentrate an unprecedented amount of power in gerrymandered state legislatures, should alarm anyone who cares about democracy.
The case is perhaps the gravest threat to American democracy since the January 6 attack. It seeks to reinstate gerrymandered congressional maps that were struck down by North Carolina’s highest court because they “subordinated traditional neutral redistricting criteria in favor of extreme partisan advantage” for the Republican Party.
The plaintiffs argue that the state supreme court didn’t have the authority to strike down these maps, and rest their claim on legal arguments that would fundamentally alter how congressional and presidential elections are conducted.
Moore involves the “independent state legislature doctrine,” a theory that the Supreme Court has rejected many times over the course of more than a century — but that started to gain steam after Republican appointees gained a supermajority on the Supreme Court at the end of the Trump administration.
Under the strongest form of this doctrine, all state constitutional provisions that constrain state lawmakers’ ability to skew federal elections would cease to function. State courts would lose their power to strike down anti-democratic state laws, such as a gerrymander that violates the state constitution or a law that tosses out ballots for arbitrary reasons. And state governors, who ordinarily have the power to veto new state election laws, would lose that power.
As Justice Neil Gorsuch described this approach in a 2020 concurring opinion in a case concerning the deadline for casting mail-in ballots in Wisconsin, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
Four justices — Gorsuch, plus Clarence Thomas, Samuel Alito, and Brett Kavanaugh — have all endorsed some version of this independent state legislature doctrine. Meanwhile, four other justices, the three liberal justices plus Chief Justice John Roberts, have signaled that they will not overrule the Court’s many precedents rejecting this doctrine.
That most likely leaves the fate of American democracy in the hands of Justice Amy Coney Barrett, a Trump appointee who typically votes with Republicans in election cases.
This said, it is unclear whether this Supreme Court would implement the most extreme version of this doctrine — with a rigid rule that a state supreme court can never strike down a state election law, or that a state governor can never veto an election bill — or a less extreme one.
Last March, the Moore case appeared on the Court’s “shadow docket.” Although a majority of the Court voted to temporarily turn the case away — with Kavanaugh explaining that he voted to do so because the case arrived at the Court at the wrong time — Alito wrote a dissenting opinion saying that he would have immediately reinstated North Carolina’s gerrymandered maps. His opinion also suggests that he wants to give himself and his fellow justices maximal flexibility to overrule state court decisions that he does not like.
So under Alito’s approach, pro-democracy state constitutional provisions might not cease to function altogether, they would only cease to function when Alito and four of his fellow Republican colleagues wish to suspend them.
Needless to say, the stakes in Moore are exceedingly high. The Court’s decision in Moore could potentially neutralize many states’ efforts to combat partisan gerrymandering. And in key swing states like Michigan, Pennsylvania, and Wisconsin — where Republicans control the state legislature and Democrats control either the governor’s mansion, the state supreme court, or both — Moore could give the Republican Party unlimited control over how federal elections are conducted.
The independent state legislature doctrine, briefly explained
The independent state legislature doctrine derives from a deceptively simple reading of the Constitution, which states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” A separate provision says that presidential elections shall also be conducted in a way determined by the state “Legislature.”
One way to read these provisions — the way that Thomas, Alito, Gorsuch, and Kavanaugh have suggested it should be read — is to say that only the body of representatives that is often described as a state’s “legislative branch” can set election rules. And that the executive branch (including the governor) and the judicial branch (including the state supreme court) may be cut out of this process entirely.
But the Supreme Court has repeatedly rejected this theory. The issue first arose in Davis v. Hildebrant (1916), which upheld a provision of the Ohio constitution permitting the people of the state to veto state election laws via a popular referendum.
Davis reasoned that the word “legislature,” as it is used by the relevant provisions of the Constitution, does not refer exclusively to the elected body of representatives who make up the state’s legislative branch. Instead, it refers more broadly to any individual or body that possesses some part of the power to make laws within a state — what the Court referred to as the “legislative power.”
Davis explained that, under Ohio’s constitution, “the referendum was treated as part of the legislative power,” and thus “should be held and treated to be the state legislative power for the purpose of creating congressional districts by law.”
This is the only reading of the relevant US constitutional provisions that makes sense because, as legal scholars (and brothers) Vikram David Amar and Akhil Reed Amar explain in a recent paper, “state people and state constitutions are masters of state legislatures,” and not the other way around.
That is, each state has the power to define, through its constitution, which body or group of bodies possesses the “legislative power” — the power to make laws. A state constitution can assign that power entirely to a body of elected representatives, but it can also give part of that power to the state governor, the state courts, to a redistricting commission, or to the people themselves through ballot initiatives and referendums.
Indeed, this is exactly how most state governments work. State constitutions — like the federal Constitution — typically permit the state’s chief executive to veto election laws. And they typically give state courts the power to resolve conflicts about how to interpret the state constitution and existing state election laws.
As the Amars write, “since the Revolution, every state legislature has been defined and circumscribed, both procedurally (e.g., What counts as a quorum? Is the governor involved in legislation?) and substantively (e.g., What rights must the legislature respect?) by its state constitution.”
The Court’s holding in Davis has been upheld many times since that decision was handed down. Most recently, in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the Court upheld Arizona’s decision to use a bipartisan commission to draw congressional maps. In that case, the Court explained that “our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”
The Court’s decision to hear the Moore case is very odd
Since four justices have already called for cases like Davis and Arizona State Legislature to be overruled or significantly altered, it’s not surprising that the Court decided to hear a case that could potentially do so — under the Supreme Court’s rules, four votes are needed to place a case on the Court’s docket of cases that receive full briefing and oral argument.
But it is surprising that the Court thought Moore was an appropriate vehicle to hear an independent state legislature doctrine case. That’s because, even if you accept Gorsuch’s theory that the state legislature and not the state judiciary bears “primary responsibility for setting election rules,” the North Carolina legislature explicitly authorized its state’s courts to hear gerrymandering lawsuits.
In other words, even if the independent state legislature doctrine is valid, North Carolina’s courts are still allowed to decide gerrymandering cases because the state legislature told them to do so.
North Carolina law provides that lawsuits challenging “any act of the General Assembly that apportions or redistricts State legislative or congressional districts” may be filed “in the Superior Court of Wake County and shall be heard and determined by a three‑judge panel.” This court’s decision may then be appealed to the state supreme court.
Indeed, North Carolina’s laws — again, laws that were written by the state legislature — provide detailed instructions on how state courts should behave when they determine that a legislative map is illegal. One statute requires state courts to “find with specificity all facts supporting” its conclusion that a map is illegal. Another provides that, after a state court strikes down a redistricting plan, it may not “impose its own substitute plan unless the court first gives the General Assembly a period of time to remedy any defects identified by the court.”
In its eagerness to hear an independent state legislature doctrine case, in other words, the Supreme Court appears to have taken up a case where there is no legitimate legal conflict. Even if state legislatures have exclusive authority to shape a state’s election law, the North Carolina state legislature used this authority to explicitly empower state courts to strike down gerrymandered maps.
And yet, it’s hard to imagine why the Court would agree to hear this case unless it is at least considering rolling back decisions like Davis and Arizona State Legislature.
If they do this we are in deep, deep shit. And I mean even deeper shit than we already are. This one could literally end our democracy as we’ve known it. The Democrats have got to grasp just how serious this is.