On December 7, 2022, the U.S. Supreme Court heard oral arguments in Moore v. Harper.
Experts who have weighed in on this case have declared Moore v. Harper one of the most pivotal cases in the history of the United States Supreme Court because of the implications it has on the future of the function of our government and our representative democracy. With so much at stake, we spoke with our Deputy Policy Director and voting rights expert, Collin Marozzi, to get more background on this case and what it might mean for Ohioans.
Can you provide some background on the Moore v. Harper case?
As a bit of background, Moore v. Harper is a case that comes out of North Carolina and has to do with the congressional map for North Carolina following the 2021 census. Republicans dominate the North Carolina legislature and they passed a congressional map that was challenged in the North Carolina State Supreme Court, based on it being what the petitioners call a partisan gerrymander (meaning it was an unfair congressional map that would give North Carolina Republican candidates for Congress an unfair advantage over their opponents).
The North Carolina Supreme Court found that the map was in fact a partisan gerrymander and brought in what's called a “special master” to draw a new congressional map that ended up in effect for the 2022 elections. That was really the springboard for the Moore v. Harper case because the North Carolina legislature argued the State Supreme Court does not have the authority to do that because of the Independent State Legislature Theory (ISLT).
What is Independent State Legislature Theory (ISLT)?
The U.S. Constitution says that the time, place, and manner of holding elections for federal offices is dictated by the legislatures of the States – and that's the key phrase “the legislatures of the States.” The North Carolina General Assembly took that language to mean that the state legislature has exclusive authority to draw the state's congressional map. Now, that also has some further ramifications and rippling effects that we'll get to later, but what the North Carolina legislature is asserting is what's called the Independent State Legislature Theory (ISLT).
At the crux of that theory is legislatures of the states are independent of state courts and state constitutions when it comes to drawing congressional maps, as well as federal election law and administration in general. The real background for the Moore v. Harper case is the Independent State Legislature Theory and we have to keep in mind - this is a theory. This is not a doctrine. This is not something that the U.S. Supreme Court or any court for that matter has really endorsed in any capacity.
ISLT is an attempt to erode our nation’s fundamental principles of checks and balances, of separation of powers, of having faith and integrity in our election system. When thinking about ISLT, the growing, and unfounded, distrust of our election system among some over the last two years cannot be overstated. At this time in our nation's history and at this critical juncture of American’s faith in our election system, creating a completely new radical process for how federal elections are regulated is just not what our country needs. We need the U.S. Supreme Court to reassert fundamental principles of checks and balances that Americans know and trust.
We’ve seen scholars and legal experts across the political spectrum come out publicly rejecting ISLT. In your expert opinion, why do you think that’s been the case?
The North Carolina legislature, by asserting this Independent State Legislature Theory, is really putting America and our representative democracy in a very dangerous place. ISLT asserts that state legislatures are not susceptible to checks and balances and separation of powers when it comes to regulating federal elections. That is an extraordinary deviation from how America has operated for the last 250 years. I think that is why we've seen in the lead up to Moore v. Harper, dozens of amicus briefs, what's otherwise known as friend of the court briefs, or essentially legal experts from around the country submitting documents to the U.S. Supreme Court weighing in on their take on the ISLT. I think it's remarkable that the consensus in those friend-of-the-court briefs is against the ISLT.
Personally, I think one of the most compelling amicus briefs submitted to the U.S. Supreme Court came from the Association of State Supreme Court Chief Justices - the leaders of all 50 State Supreme Courts in the country. They asserted that the Independent State Legislature Theory, if accepted, would turn our entire government framework on its head and really lead us down a very dangerous path.
After hearing oral arguments on Wednesday 12/7, what stood out most to you?
As we were gearing up towards oral argument, I really had my mind set on three things to watch for in particular. 1) How was North Carolina going to argue this case? Were they going to go for the broadest, all-encompassing version of the ISLT, or would they try to argue a narrower version of this theory? 2) The Court has had a couple of big cases in very recent history that they would need to resolve with the Moore v. Harper case - should they choose to embrace this ISLT, otherwise there will be direct conflict of recent Supreme Court precedent in this area of law. 3) How is the “center” of the court going to receive North Carolina's arguments - and by the center of the court I mean Justices Barrett, Roberts, and Kavanaugh. It’s our expectation that the three hardline conservative members of the Court - Justices Gorsuch, Alito, and Thomas - will be more receptive to the ISLT, while the three liberal members of the Court - Justices Kagan, Sotomayor, and Jackson, will likely reject the ISLT. With five justices needed to create a majority opinion, these three center Justices - Barrett, Kavanaugh, and Roberts - are really the linchpins of this case.
As we watched oral arguments, the three center justices seemed skeptical that a state legislature should have this sort of broad-based unchecked authority. I think this sets the stage for the justices to try to work to find a more narrow nuanced version of ISLT. Now, where that line comes down I think remains to be seen. But, I feel confident saying that I do not believe the U.S. Supreme Court is going to accept this far-reaching, more radical version of ISLT, which again, if it were to be accepted would really turn America's election administration and our founding principles on its head.
How would a ruling in favor of this theory impact the future of Ohio redistricting?
To put it mildly, Ohio's redistricting process this last cycle has been a disappointment. I think that is being quite generous. It’s important to note that while Moore v. Harper comes out of North Carolina, the Ohio General Assembly petitioned the U.S. Supreme Court to join this case, arguing that North Carolina in their expansive interpretation of the ISLT is correct. The OGA urged the U.S. Supreme Court to agree with North Carolina in that state legislatures have the sole authority to draw congressional maps and regulate federal elections. That’s concerning in and of itself that members of the Ohio General Assembly seem to be enthusiastically endorsing this fringe legal theory that could upend the very fabric of American democracy.
In practical terms if the U.S. Supreme Court should endorse this expansive version of ISLT, it would really hamstring Ohioan’s ability to put additional constraints and reforms on the way we draw our congressional maps. The continued refusal of those in power to obey the Ohio Supreme Court and draw fair maps in Ohio has instigated a need for additional reform. That additional reform is shaping up to be a truly independent redistricting commission, very much like what states of Michigan, California, Arizona, and Colorado. Now, if the U.S. Supreme Court were to embrace this expansive version of the ISLT, we would no longer have the ability to put forward these reforms to the people. If ISLT is adopted, it will remove the choice from the people of Ohio.
Ohioans want fair districts. They want impartial actors when we are drawing our maps so we have fair elections, so people's voices matter, and so we create good policy. At the end of the day, we know gerrymandered maps lead to extreme policies that average Ohioan's don't want and the policies that average Ohioan's do want go ignored because the state legislature is insulated from accountability.
Of critical importance and major concern, is the fact that the Ohio General Assembly asked the U.S. Supreme Court to give them unlimited authority to regulate our federal elections and draw congressional maps. They are not asking the Court to take a measured approach to respect the traditional norms of checks and balances and separation of powers. They're essentially looking for a blank check to do whatever they want whenever they want in terms of our federal election laws and administration.
Now, I will say one silver lining here is that even if the U.S. Supreme Court were to endorse this expansive view and they said that only the state legislatures can regulate our congressional maps and our federal elections, we still have the power as Ohioans to reform our state legislative districts. That's critical because 80% of the laws that govern Ohioan's day-to-day lives are coming out of the state legislature. Even if the ISLT is adopted, the redistricting process for our state representatives and state senators will go untouched. This will give us an avenue to create fair congressional maps.
To anybody who's reading this and is concerned about the future of election administration and the foundational principles of checks and balances - there are so many ways to get involved. Find the groups that are already doing this work and tap in. The ACLU of Ohio is a part of the Fair Districts, a coalition of other voting advocates and good government groups that are fighting to end gerrymandering in this state. We've been on the ground doing the work for the better part of three years now and we're not stopping anytime soon.
I would also encourage folks to contact their State Representatives and State Senators. Ask them to meet, and explain that you want fair districts, and you want to uphold the foundational principles of checks and balances. These are the principles that make America stand out as one of the most robust democracies in the world.