The US Supreme Court ruled Tuesday in Moore v. Harper that the “independent legislature” election theory, which has been the legal foundation for many of the recent Republican-led efforts to change election administration law and overturn 2020 election results, is an invalid interpretation of the Election Clause of the Constitution. The theory stipulates that state legislatures retain exclusive authority over the administration of elections; therefore, state courts are not allowed to intervene, even if the law in question violates the state constitution.
Chief Justice John Roberts, writing for the majority, pointed to the lengthy history of state courts’ power of judicial review. Roberts said, “The Framers recognized state decisions exercising judicial review at the Constitutional Convention of 1787.” Roberts went on to reason that “a state legislature may not ‘create congressional districts independently of’ requirements imposed ‘by the state constitution with respect to the enactment of laws.'”
Roberts concluded, writing:
State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review. 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.
Justice Brett Kavanaugh concurred with the ruling, stating, “[T]he Court has recognized and articulated a general principle for federal court review of state court decisions in federal election cases. In the future, the Court should and presumably will distill that general principle into a more specific standard.”
Justices Clarence Thomas and Samuel Alito dissented, along with Justice Neil Gorsuch who dissented in part. Justice Thomas, writing for the dissent, argued that the case should be dismissed on grounds of “mootness.” However, he continued that even if the petitioners had standing, the majority incorrectly interpreted the argument of the petitioners, saying:
Petitioners’ argument…is that legislation about the times, places, and manner of congressional elections is not limited by state constitutions—because the power to regulate those subjects comes from the Federal Constitution, not the people of the State. Right or wrong, this question has nothing to do with whether state courts have the power to conduct judicial review in the first place.
Moore began as a legal dispute over the North Carolina congressional map, drawn by the Republican-controlled legislature in 2021. Multiple organizations and voters challenged the map as politically gerrymandered—meaning it favored Republicans over Democrats. Partisan gerrymandering, while federally constitutional, is not constitutional under the North Carolina State Constitution. The North Carolina State Supreme Court and a lower-level trial court sided with the organizations and voters, claiming that the map was politically gerrymandered and therefore unconstitutional. However, the State Supreme Court later reversed its decision, claiming there was no “judiciable standard” by which the map could be assessed for partisan gerrymandering. The US Supreme Court granted certiorari and heard oral arguments in 2022.
This is not the first time North Carolina’s legislature has been scrutinized for its gerrymandering practices. According to Democracy Docket, a progressive gerrymandering watchdog, the state’s legislature has tussled with the federal government over its congressional maps since the 1990s. The state has also previously appeared before the Supreme Court for accusations of gerrymandering in Shaw v. Reno and Cooper v. Harris.
