In June, the conservative majority on the U.S. Supreme Court has rocked the nation with two startling decisions on bitterly contested issues. First, in Dobbs v. Jackson Women's Health Organization, the court overturned Roe v. Wade, the 49-year-old decision that had established a constitutional right to abortion, and gave states the power to completely outlaw it if they choose. Then, in New York State Rifle & Pistol Association v. Bruen, the court decided that the Second Amendment gives Americans the right to carry concealed handguns outside the home, without showing a special need for such protection.
Those cases have caused such a tumult that another action by the court may have gone unnoticed by some, even though it has the potential to even more radically reshape America — and possibly, according to some experts, pose a real threat to American democracy itself.
On June 30, the court indicated that it would take up Moore v. Harper, a case being brought by Republican state legislators in North Carolina. They're challenging the authority of their state's Supreme Court to reject the congressional redistricting map that they had drawn, in which districts were gerrymandered to give the Republican Party an advantage in 10 out of the state's 14 congressional districts, even though slightly more North Carolina voters cast ballots for Democrats in the 2020 congressional election. The North Carolina court has imposed what it saw as a fairer map, drawn by a court-appointed group of special masters, which would give Democrats an edge in six out of 14 districts.
The GOP legislators say the courts intervening in redistricting and elections violates Article I, Section 4, Clause 1 of the U.S. Constitution, often referred to as the Elections Clause, 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." In their application to the court, they argue that the founders intended for state legislatures to have that authority to themselves, without judicial review.
"I am confident that this court recognizes what our state Supreme Court failed to recognize — that the United States Constitution explicitly gives the General Assembly authority to draw districts and that authority must be recognized," North Carolina House Speaker Tim Moore explained in a statement, according to WRAL.com.
The U.S. Supreme Court will hear arguments in the case in its fall 2022 term and presumably will issue its ruling in the summer of 2023. If the case is decided in favor of the plaintiffs, it might give state legislatures near-total control over the drawing of congressional districts in their states, allowing them to create gerrymandered maps that couldn't be overturned as unfair by state courts. The result, experts warn, might be entrenched one-party rule, in which one party increasingly could eliminate contestable seats, and fill the U.S. House with members who were guaranteed reelection cycle after cycle.
Case Could Affect Presidential Elections Too
But the decision's effect might reverberate beyond just the issue of gerrymandering, notes Jonathan L. Entin. He's a professor emeritus of law and adjunct professor of political science at Case Western Reserve University School of Law, and a former law clerk to Ruth Bader Ginsburg when she was on the U.S. Court of Appeals for the District of Columbia circuit.
"Although this is not squarely an issue in the case, presumably if they can persuade the Supreme Court that the legislature has unfettered discretion to draw the maps, it also gives the state legislature the unfettered discretion to decide how to award the electoral votes in the presidential election," Entin explains.
"Many observers are undoubtedly reading this case through the lens of the 2020 presidential election, where [former President Donald] Trump urged state legislatures to make their own determination as to who had won the elections within their states, effectively substituting the will of the people's representatives for that of the people," says John Vile, dean and professor of political science at Middle Tennessee State University.
If state legislatures had that power in 2020, it's possible to imagine a scenario in which Republican-dominated legislatures in several states could have awarded their states' electoral votes to incumbent Donald Trump, even though he had received fewer votes at the polls than Joe Biden. (Indeed, in a lawsuit filed on behalf of Trump in Pennsylvania, one for the proposed remedies was throwing out the popular vote and letting state legislators choose the winner, an option that a federal judge derided as "breathtaking.")
Independent State Legislature Theory
If the Supreme Court found in favor of the North Carolina GOP legislators, it would be a striking shift from the position that the court took just three years ago in Rucho v. Common Cause, another North Carolina case. A 5-4 majority found that federal courts cannot consider challenges to gerrymanders done to get partisan political advantage (as opposed to, for purposes of racial discrimination). In that case, Chief Justice John Roberts' opinion on behalf of the court argued that while federal judges couldn't throw out maps because of partisan gerrymandering, state courts might be able to do so. That recently happened in Maryland, where a state judge threw out a Congressional map drawn by the Democratic-controlled legislature because she saw it as unfair to the GOP.
More importantly, legal and political scholars say it would also be a departure from the traditional balance of power in American government, the system in which judges and state constitutions act as a check on the power of legislators, and vice versa.
"The idea that there's some kind of legislative power that is separate and apart from the ordinary constitutional limitations is really quite remarkable and lawless," Chicago-Kent College of Law's Carolyn Shapiro, founder of the Institute on the Supreme Court of the United States, told NPR.
Critics of that legal concept, called the independent state legislature theory, say it grew from a single line in then-Chief Justice William Rehnquist's majority opinion in Bush v. Gore, the 2000 case that stopped recounting votes in Florida, in effect awarding the Presidency to George W. Bush. Rehnquist quoted an 1892 decision, McPherson v. Blacker that states had "the broadest power of determination" and that the Constitution "leaves it to the legislature exclusively to define the method" of appointment. (That case, Entin notes, involved a totally different and only tangentially related issue — whether Michigan legislators had the right to split up their state's electoral votes among congressional districts, as Maine and Nebraska do today.)
One problem with giving legislatures near-total authority in elections is that they themselves often are the product of gerrymandering, according to Charles Anthony "Tony" Smith. He's a professor of political science at the University of California, Irvine and co-author of the books "Gerrymandering in America: The House of Representatives, the Supreme Court, and the Future of Popular Sovereignty," and "Gerrymandering the States: Partisanship, Race, and the Transformation of American Federalism."
Smith points out that gerrymandering of state legislative districts also has become so extreme that it's possible in a place such as North Carolina for one party to hold power even if it isn't supported by a majority of voters. "You could get a minority government picking the presidential winner," he warns. "If you do that, you're stepping away from democracy in a real and very dangerous way."
"We would be eliminating the check we have on bad actors, which is elections," Smith says.
Despite several justices indicating that they're willing to consider the independent state legislature theory, it's not necessarily a done deal that the U.S. Supreme Court will totally do away with state courts' oversight of redistricting and elections, according to Christopher Parker, an assistant professor of political science at the University of Rhode Island.
Instead, the court may adopt a more constricted view "that would limit the ability of state courts to create new election regulations or draw their own district maps, but still allow those courts to exercise the ability to strike down regulations that violate the state constitutions," Parker says via email. "North Carolina's legislature has also explicitly authorized the state courts to implement temporary redistricting plans, so that also leaves open the possibility that a majority of justices will more narrowly rule that the North Carolina judiciary has been constitutionally delegated the authority to implement new district maps, and thus leave the larger questions about [independent state legislature theory] for another day. Or they may reject the doctrine altogether."
And even if the Supreme Court rules that legislatures don't have to listen to state courts, there's not total agreement that they would gain the power to choose presidential electors. In this article for Election Law Blog, New York University constitutional law professor Richard Pildes argues that legislators wouldn't be able to appoint electors after a popular election has taken place.