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Informed Citizens

are Better Citizens

by Jodi L. Miller

 The United States government is a system of checks and balances. The Founders designed it that way so that no one branch—executive, legislative or judicial—has more power than another.

In June 2023, the U.S. Supreme Court issued a decision in Moore v. Harper, a case brought before the Court by North Carolina Republican lawmakers. The case involved the notion of an independent state legislature, a theory that suggests the U.S. Constitution delegates authority to regulate federal elections within a state to its state lawmakers (legislative) with no checks from state courts (judicial) or governors (executive).

“The independent state legislature theory is the view that the Constitution creates a uniquely independent role for state legislatures when they regulate federal elections,” Richard H. Pildes, a professor at New York University School of Law, wrote in an op-ed for The New York Times. “The extreme view that the North Carolina legislature took in the case would mean that even state constitutions could not limit the legislature’s power to, among other things, design the state’s congressional voting map in a way that unfairly maximizes one party’s advantage over the other (in this case, Republicans over Democrats).”

Background of the case

Overall, North Carolina’s voters are evenly divided between Democrats and Republicans. In 2021, however, the state’s legislature, controlled by Republicans, drew a congressional map to be used to elect North Carolina’s representatives to the U.S. House of Representatives that was gerrymandered on a partisan basis. The congressional map produced 10 districts favoring Republicans, with just three districts favoring Democrats. In 2019, the U.S. Supreme Court decided that while federal courts could not consider claims of partisan gerrymandering, states could address the issue via state laws and state constitutions.

The North Carolina Supreme Court struck down the map, finding it was “intentionally and carefully designed to maximize Republican advantage.” North Carolina’s highest court also ruled that the map violated the guarantees of free elections, free speech, free assembly, and equal protection, outlined in North Carolina’s constitution.

In February 2022, a court-ordered congressional map, drawn by independent redistricting experts, as well as three trial court judges, was approved for use in the 2022 midterm election. The map contained evenly split districts, with seven Democratic favored districts and seven Republican favored districts. By that time, North Carolina had picked up an additional seat in the U.S. House of Representatives after the U.S. Census.

In 2022, the Republican lawmakers appealed the North Carolina Supreme Court’s decision regarding the congressional map to the U.S. Supreme Court, arguing that the Election Clause (Article I, Section 4) of the U.S. Constitution does not give state courts authority to rule on congressional maps, citing the independent state legislature theory. The U.S. Constitution’s Elections Clause states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”

Relying on history

In court filings, the North Carolina lawmakers relied on historical evidence to assert the validity of the independent state legislature theory, specifically a document from Charles Pinckney, a South Carolina delegate to the 1787 Constitutional Convention. In 1818, when then-Secretary of State John Quincy Adams was compiling an official record of the Constitutional Convention for publication, Pinckney provided what he said was an early draft of the U.S. Constitution.

In what is known as the Lost Pinckney Plan, an earlier version of the Elections Clause stated, “Each State shall prescribe the time & manner of holding Elections by the People for the house of Delegates & the House of Delegates shall be the judges of the Elections returns & Qualifications of their members.”

According to the brief submitted to the U.S. Supreme Court, the petitioners (the North Carolina Republican lawmakers) contended that the framers “deliberately changed the Constitution’s language to specify that state legislatures were to exercise that power, not any other state entity and not the State as a whole.”

The problem with that argument is that the Pinckney document has been disputed by many historians over the years. It was even debunked by James Madison, considered the Father of the Constitution, who took comprehensive notes during the Constitutional Convention. In Madison’s papers, published after his death, he included an appendix that indicated that the Pinckney Plan produced in 1818 was not what Pinckney actually proposed.

Lynn Uzzell, a professor of politics at Washington and Lee University who is working on a book about the records of the 1787 Constitutional Convention, spoke to National Public Radio (NPR) about the problems with relying on what she called “law-office history.”

“They [lawyers and judges] think they can prove their case of what the original meaning of the Constitution is by dipping into the records and selecting a few quotations at random without knowing anything about the historical context,” Professor Uzzell told NPR. “Nowhere does it get more complicated than when we look at the Lost Pinckney Plan.”

Oral arguments

During oral arguments in Moore v. Harper, the attorney arguing for the North Carolina lawmakers asserted that “states lack authority to restrict legislatures because the legislature is fulfilling a federal function.” While the attorney arguing against the independent state legislature theory said, “For 250 years courts have not read the Constitution this way. There is no such thing as an independent state legislature.”

During the three-hour debate, Justice Elena Kagan indicated her concern about the consequences that embracing ISL would have, including giving legislatures free reign to engage in extreme forms of gerrymandering with no constitutional remedy.

“It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state Constitution in fact prohibits. It seems very much out of keeping with the way our governmental system works and is meant to work,” Justice Kagan said. “This is a proposal that 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.”

Court’s decision

In a 6-3 ruling, the U.S. Supreme Court rejected the independent state legislature theory.

“State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause,” Chief Justice John Roberts wrote for the majority of the Court. “In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.”

In the Court’s majority opinion, Chief Justice Roberts cited court precedent that “rejected the contention that the Elections Clause vest [assign] state legislatures with exclusive and independent authority when setting the rules governing federal elections.”

Why so worried?

Legal scholars were watching Moore v. Harper closely, concerned about how the Court would rule. Nearly 70 amicus briefs from individuals or organizations were submitted, mostly in opposition to the independent state legislature theory.

One brief, submitted by law professors and historians specializing in the country’s founding era, explained the problems with the plaintiff’s argument. “Petitioners rely on a famously misleading document to create an incorrect drafting history of the Elections Clause,” the brief stated. “Petitioners misread that text, which was not part of the drafting history but was written at least a decade after ratification. They thereby construct a false narrative and an invented imputed [credited] intent.”

Why was the legal community so worried about the outcome of this case? According to Professor Douglas, affirming the independent state legislature theory would have allowed state legislatures to pass election laws without any oversight. He notes that previous U.S. Supreme Court decisions have protected the right to vote, but “too narrowly,” providing little oversight under the U.S. Constitution.

“State constitutions are more explicit in their protection for the right to vote,” Professor Douglas says. “The theory [ISL] would have meant that state legislatures could pass rules for federal elections even if those rules violated the state constitution, and that state courts could not intervene under the state constitution.”

While the U.S. Supreme Court’s decision rejected the independent state legislature theory, it offered no guidance to lower courts.

“The Court did, sort of, adopt a weak form of the doctrine in that it left the door open for the U.S. Supreme Court to question a state court ruling to ensure it does not ‘transgress the ordinary bounds of judicial review such that they arrogate [claim] to themselves the power vested in state legislatures to regulate federal elections,’” Professor Douglas says.

Although Professor Douglas says the meaning of this phrase is not clear, essentially, he says, “It would allow the U.S. Supreme Court to overturn a state court ruling if the Supreme Court thinks the state court went too far, even if the state court is interpreting the state constitution.”

Discussion Questions

  1. What are the benefits of government having a system of checks and balances? Are there drawbacks as well? Explain your answer.
  2. Re-read the Elections Clause of the U.S. Constitution included in the article. How much power do you think the framers intended for state legislatures to have? Explain your answer.
  3. What possible outcomes might there be if state legislatures had more power than state courts? Explain your answer.

    Glossary Words
    amicus briefa friend of the court brief, which is submitted by an entity with strong interests in a case but not a party in the case.
    appealed— when a decision from a lower court is reviewed by a higher court.
    gerrymander—manipulate the boundaries of a community to favor one political party or class over another.
    partisan—someone who supports a particular political party or cause with great devotion.
    plaintiff — person or persons bringing a civil lawsuit against another person or entity.
    precedent — a legal case that will serve as a model for any future case dealing with the same issues.
    ratification—the action of formally signing a contract or agreement to make it official.