In its recent Moore v. Harper decision, the US Supreme Court rejected the so-called independent state legislature theory. That theory holds that state legislatures are insulated from the ordinary exercise of state judicial review under the Elections Clause. The Elections Clause specifically provides:

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, except as to the Places of chusing Senators.

The Supreme Court has previously ruled that the Elections Clause “imposes” on state legislatures the “duty” to prescribe rules governing federal elections and it guards “against the possibility that a State would refuse to provide for the election of representatives.”

Following the 2020 U.S. Census, North Carolina’s General Assembly redrew North Carolina’s congressional districts. That map, according to the Brennan Center, was a statistical outlier more favorable to Republicans than over 99% of all possible maps. Voter-plaintiffs brought the case before state court, because the Supreme Court ruled in a 2019 decision that federal courts cannot hear partisan gerrymandering cases. Voter-plaintiffs contested that the map violated the state constitution’s “free elections clause,” among other provisions. After holding that the 2021 districting maps “substantially infringe[d] upon plaintiffs’ fundamental right to equal voting power,” the North Carolina Supreme Court in Harper I struck down the maps and remanded the case to the trial “court to oversee the redrawing of the maps by the General Assembly or, if necessary, by the court.” The General Assembly adopted a remedial congressional redistricting plan.

The trial court, however, rejected that plan and adopted in its place interim maps developed by several Special Masters for use in the 2022 North Carolina congressional elections. The legislative-defendants appealed that decision, and the Supreme Court granted certiorari. Following certiorari, in Harper II, the North Carolina Supreme Court heard an appeal concerning the trial court’s remedial order and agreed with the trial court’s determination that the General Assembly’s remedial congressional plan “fell short” of the requirements set forth in Harper I. The legislative-defendants sought rehearing, requesting that the North Carolina Supreme Court “withdraw” its remedial opinion in Harper II. The legislative-defendants also asked the Supreme Court to “overrule” its decision in Harper I, although they conceded that doing so would not “negate the force of its order striking down the 2021 plans.”

In Harper III, the North Carolina Supreme Court issued a decision granting the requests made by the legislative-defendants. In that decision, the North Carolina Supreme Court withdrew its opinion in Harper II concerning the remedial maps and “overruled” its decision in Harper I. Specifically, the Court repudiated Harper I ’s conclusion that partisan gerrymandering claims are justiciable under the North Carolina Constitution.

The Opinion 

Issue I: Mootness

The majority held that legislative-defendants appeal was not moot. Were the Supreme Court to reverse the judgment in Harper I — a step not taken by the North Carolina Supreme Court — the 2021 plans enacted by the legislative-defendants would again take effect. The parties accordingly continue to have the requisite “personal stake in the ultimate disposition of the lawsuit.” The Supreme Court also ruled that it had jurisdiction to review the judgment in Harper I because it has jurisdiction over cases “in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state court proceedings.” Here, further decision is required because Harper III neither altered Harper I ’s analysis of the federal issue nor negated the effect of its judgment striking down the 2021 plans.

Issue II: The Independent State Legislature Theory

The majority rejected the independent state legislature theory, rejecting the notion that the Elections Clause insulates state legislatures from the ordinary exercise of state judicial review. The majority began with a historical discussion that traced the role of legislatures, citing the Federalist Papers, the Constitutional Convention, and Marbury v. Madison for the proposition that  “an act of the Legislature repugnant to the Constitution is void.” The majority also relied on more contemporary cases, especially Hildebrant, Smiley, and Arizona State Legislature, which considered the interplay between state constitutional provisions and a state legislature’s exercise of authority under the Elections Clause. Those cases recognized “that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking. . . . Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” Although the majority concluded that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, it ruled that “state courts do not have free rein.” The majority, however, left the exact role of state courts unsettled: While the Court does not adopt a test by which state court interpretations of state law can be measured in cases implicating the Elections Clause, state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

Other Opinions

Concurrence

Justice Kavanaugh issued a concurring opinion which laid out a specific standard to determine when state court rulings transgressed their proper bounds. He said he would have adopted a standard articulated by then-Chief Justice William Rehnquist in the 2000 presidential election case, Bush v. Gore, allowing federal courts to strike down state court rulings that “impermissibly distorted” state law “beyond what a fair reading required.”

Dissent

Justices Thomas, Alito, and Gorsuch held that this case was moot. The dissent interpreted Harper III to represent “the final determination of the rights of the parties” in this case, because it held that “partisan gerrymandering claims present a political question that is nonjusticiable under the North Carolina Constitution.”

Justices Thomas, writing, and Gorsuch, agreeing, also found the majority’s merits reasoning unpersuasive. The two justices differentiated between substance and procedure, referring to legislative-defendants contention that “state constitutions may specify who constitute ‘the

Legislature’ and prescribe how legislative power is exercised, but they cannot control what substantive laws can be made for federal elections.” When addressing the majority’s opinion on the role of judicial review, the two justices feared the rise of state constitutional law questions in federal law: “In the end, I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.”

Aftermath

The Brennan Center explained the concerns about the independent state legislature theory as follows: “State lawmakers would be able to adopt vote suppression legislation without any checks or balances from state courts or even gubernatorial veto.” Democracy Docket notes that there are currently 28 active state court cases challenging congressional maps and state laws concerning federal elections, including 7 that involve state constitutional challenges to congressional maps in which charges of partisan gerrymandering are central. Democracy Docket applauds Harper v. Moore for “preserv[ing] a crucial avenue of recourse for litigants to challenge congressional maps in state court that unfairly benefit one political party over another.”