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What is Moore v. Harper? Experts say the next big Supreme Court case ‘could provide the path for election subversion’

Demonstrators wave signs advocating for voting rights in Atlanta, Georgia, on January 11 before President Biden and Vice President Harris speak.

Megan Varner/Getty Images

  • The Supreme Court on Thursday agreed to hear the case of Moore v. Harper in October. 
  • Moore v. Harper is a North Carolina case regarding the independent state legislature doctrine and gerrymandering. 
  • If the Court rules in the state’s favor, the ruling could impact the outcome of the 2024 presidential election. 

The Supreme Court on Thursday agreed to hear the case of Moore v. Harper, a North Carolina case that concerns gerrymandering, voting districts, and a little-known theory called the independent state legislature doctrine, this coming October. 

Should the Court rule in North Carolina’s favor, the ruling would reduce voter oversight on state legislatures and likely impact the outcome of various statewide political races — as well as the 2024 presidential election. 

The Facts of Moore v. Harper

Moore v. Harper centers around congressional maps drawn by Republican lawmakers in North Carolina following the 2020 census. The maps were challenged in court by Democratic voters and nonprofits who argued the districts were unfairly gerrymandered in favor of Republicans, which violated the state constitution. 

Earlier this year, the North Carolina Supreme Court blocked the state from using the maps in primary elections and required the districts be redrawn.

“Today, we answer this question: does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote? Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others?” Justice Robin Hudson wrote in the state supreme court’s majority opinion, which blocked the use of the gerrymandered maps. “We hold that our constitution’s Declaration of Rights guarantees the equal power of each person’s voice in our government through voting in elections that matter.”

Republican state lawmakers in February requested in an emergency appeal that the United States Supreme Court halt the state’s order to redraw the maps, though the request was denied.

Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented to the denial. In their dissent, the justices wrote that the independent state legislature doctrine was an important question for the court to resolve. 

The new maps, drawn by North Carolina Supreme Court-appointed experts, were used in the state’s May 17 primary election.

In another appeal to overturn the state Supreme Court’s decision, Timothy K. Moore, the Speaker of the North Carolina House of Representatives, filed for a writ of certiorari — a request that the United States Supreme Court review the case.

The review was granted on June 30 with the case to be heard in the Supreme Court session this October. 

Independent State Legislature Doctrine

At the heart of the case, according to SCOTUS blog, is the legal theory called “independent state legislature doctrine,” which suggests that, under the Constitution’s election clause, “only the legislature has the power to regulate federal elections, without interference from state courts.” 

“The theory would disable state courts from protecting voting rights in federal elections by eliminating state constitutional protections in those elections,” Legal experts Leah Litman, Kate Shaw and Carolyn Shapiro wrote of the case in an opinion piece for The Washington Post. “And it would do so at a time when voting rights are under attack, including at the Supreme Court itself.”

Under the most strict readings of the doctrine, provisions in state constitutions which restrain lawmakers’ from influencing elections would be rolled back. The governor, who could usually veto new election laws, would lose the ability to do so and state courts would be unable to reverse anti-democratic laws or challenge gerrymandered districts.

This interpretation of the constitution “could make it easier for state legislatures to suppress the vote, draw unfair election districts, enable partisan interference in ballot counting,” the Brennan Center for Justice tweeted about the case. 

Conservative Supreme Court justices Neil Gorsuch, Brett Kavanaugh, Clarence Thomas, and Samuel Alito have all endorsed versions of the legal theory in previous court opinions. Their support signals that they will vote in this case to overturn previous legal precedent which considered such cases highly partisan and thus “unjusticeable” and prevented the country’s highest court from weighing in on partisan state issues including gerrymandered election maps. 

The Court’s forthcoming decision could roll back efforts to combat gerrymandering in battleground states nationwide and give state legislatures unlimited control over how federal elections are conducted.  

“This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections,” election law expert Richard Hasen wrote on his Election Law blog. “It also could provide the path for election subversion.”

Alexandria Ocasio-Cortez called the Supreme Court’s decision to hear the case “a judicial coup in progress.”

“If the President and Congress do not restrain the Court now, the Court is signaling they will come for the Presidential election next,” the New York Democrat tweeted. “All our leaders — regardless of party — must recognize this Constitutional crisis for what it is.”

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