Moore v Harper Revisited: How State Legislatures Can Avoid Following the Law
The last time I wrote about Moore v. Harper for the Brown Undergraduate Law Review, the Supreme Court had not yet delivered its opinion, nor had they even heard the arguments presented by either side in the case. However, in a 6-3 ruling on June 27, 2023, the Court dismissed the widely debated “independent state legislature theory” and affirmed that the actions of the North Carolina Supreme Court in overturning a congressional map approved by the state legislature did not violate the Constitution. This ruling establishes a precedent for state legislatures’, state courts’, and governors’ roles in the redistricting process. It also offers a clearer interpretation of how the Constitution delegates the power to administer federal elections to the states.
The Constitution contains two clauses that address the administration of elections: the Elections Clause and the Presidential Electors Clause. The 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; but the Congress may at any time by Law make or alter such Regulations.” The Presidential Electors Clause declares: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Traditional interpretation of these clauses holds that “the Legislature” refers to the general lawmaking processes pre-determined by each state. This typically grants governors and state courts the authority to veto legislation and assess whether it complies with the given state’s constitution, including those related to elections.
On the other hand, according to the “independent state legislature theory,” the term “legislature” is understood to mean the State Legislature, awarding the legislative body unchecked authority over federal elections without oversight from governors, election commissioners, secretaries of state, and state courts. This has the potential to significantly bias elections and lead to the implementation of unchecked partisan tactics aimed at suppressing voters. These tactics could impact various aspects of the electoral process, including voter registration practices, polling hours, early voting, and mail-in ballot procedures. These discriminatory voting laws could only be reviewed by federal courts, depriving challengers of the opportunity to contest those decisions in state courts under state laws or constitutions.
Thankfully, the Court rejected the “independent state legislature theory,” ruling that the state legislature will continue to have checks and balances. In the case of North Carolina, this meant that North Carolina’s State Supreme Court had the authority to overturn the partisan district maps, which violated a provision in the State’s Constitution ensuring free elections. However, the role of the Supreme Court in future redistricting cases remains ambiguous. In Rucho v. Common Cause (2019), the Supreme Court ruled that federal courts cannot consider claims of partisan gerrymandering; however, in Moore v. Harper, the court retained the right for federal courts to review extreme cases when state courts “exceeded the bounds of ordinary judicial review.” Notably, the Supreme Court did not establish a clear standard for determining “extreme cases” in the Moore v. Harper ruling. Thus, the selection of cases for the Court’s docket will be of particular interest.
One case considered “extreme” by the Supreme Court is Allen v. Milligan, which addresses gerrymandered district maps drawn for Alabama following the 2020 census. In January 2022, a three-judge court granted a preliminary injunction to the Plaintiffs, finding that Alabama violated the Voting Rights Act by denying Black Alabamans an equal opportunity to elect representatives of their choice. Alabama was given the chance to redraw the map to rectify the issue before the 2022 elections, but a stay granted by the Supreme Court allowed the elections to proceed using the current illegal maps. When the court delivered its opinion in June 2023, it upheld the district court’s ruling that Alabama had to redraw its district boundaries ahead of the 2024 election to allow for at least two districts in which Black citizens could elect a candidate of their choosing. Yet, the State Legislature drew up maps that continued to dilute the Black vote, a fact that the State even admitted, forcing the district court to adopt a map drawn by independent third parties that complied with the Supreme Court’s orders. These maps will stay in place for the 2024 elections.
The Moore v. Harper ruling, decided 19 days after Merrill v. Milligan, reaffirms the Alabama State Court’s decision to adopt maps drawn by a special master. The State Legislature blatantly ignored the Supreme Court and District Court’s orders to draw maps that would not dilute the Black vote in a state that is approximately 27 percent Black. Upon deciding to commission an independent third party, the district court noted, “[w]e are deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires.” By enacting their own map, the State Court was sending a clear message: state legislatures cannot blatantly ignore Supreme Court rulings and dilute the minority vote through racial gerrymandering. Alabama isn’t the only state that has had to employ a special master; New York courts also found it necessary to employ a special master to draw district maps after much litigation.
The state legislature isn’t fit to single-handedly determine state voting procedures that comply with the law. Fortunately, in Moore v. Harper, the Supreme Court recognized this need for checks and balances at the state level and rejected the “independent state legislature” theory, which aimed to grant State Legislatures unchecked power over election administration.
Jacqueline Metzler is a sophomore at Brown University studying International and Public Affairs on the Policy and Governance track. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at jacqueline_metzler@brown.edu.
Julian Cohen is a sophomore at Brown University, double concentrating in History and International and Public Affairs. He is an editor for the Brown Undergraduate Law Review and can be contacted at julian_@brown.edu.