Moore v. Harper and ISL
By Janette Ansolabehere
Moore v. Harper, a North Carolina state case involving gerrymandering, is pending before the U.S. Supreme Court. And according to constitutional law experts, it may be the most important election case to come before the Court.
The Democratic-controlled North Carolina Supreme Court ruled 4-3 that the redistricting map passed by the Republican-controlled General Assembly was unconstitutional because it was too artificial and partisan. Democrats had argued the map had been racially and partisan gerrymandered. The General Assembly argued the map was legal under Article 1 of the U.S. Constitution (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”), based on a theory known as the Independent State Legislature theory or ISL.
The Voting Rights Act allows courts to overrule maps due to racial gerrymandering. The General Assembly’s appeal argued that ISL barred the courts from overruling maps due to perceived partisan gerrymandering. The U.S. Supreme Court agreed to hear the General Assembly’s appeal. However, in the 2022 election, Republicans took control of the North Carolina Supreme Court, which vacated the original decision; it is uncertain if the U. S. Supreme Court will rule or dismiss the case as moot.
ISL proponents argue that only state legislatures can make decisions related to election law, and courts or the executive branch are barred from challenging it. This decision would fully allow the state legislature to control redistricting and other voting laws. The courts have previously rejected the ISL interpretation. (Smiley v. Holm, US SCT 1932). However, since Bush v. Gore, US SCT 2000), ISL has gained traction with Republicans.
The U.S. Supreme Court heard oral arguments in December 2022. Court observers noted that it “appeared” that the ISL theory was rejected by Kagan, Sotomayor, and Jackson as well as Chief Justice Roberts, Kavanaugh, and Barrett, with Roberts agreeing to overturn the lower court decision but not based on ISL. Alito, Gorsuch, and Thomas seemed to embrace the ISL theory as argued by counsel for the General Assembly.
Suppose the Court does render an opinion in favor of the General Assembly based on its proposed interpretation of Article 1 of the U.S. Constitution. In that case, legal experts fear it could have a major, if not devastating, effect on future elections. A state legislature could pass laws effectively barring a court from overruling a map based on blatant partisan gerrymandering.
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