The United States Supreme Court announced last month that it will hear a partisan gerrymandering case next term, one that critics say has the potential to wreak havoc on American democracy. At issue in Moore v. Harper is the “independent state legislature” theory, a controversial idea that, under the U.S. Constitution, state legislatures have the power to regulate federal elections, without interference from state courts.
Earlier this year, the North Carolina Supreme Court blocked the state from using congressional maps drawn by Republican state lawmakers. Democrats and others had challenged the maps, saying they were unfairly gerrymandered in favor of Republicans. The North Carolina GOP is now asking the U.S. Supreme Court to rule that it is unconstitutional for state courts to have oversight in federal elections.
Penn Today asked experts Jason Abel and Kermit Roosevelt of Penn Carey Law, and Mary Frances Berry and John Lapinski of the School of Arts & Sciences to share their thoughts on what it would mean for voting rights, election integrity, and American democracy if the Court sides with the North Carolina Republicans.
Our democracy has faced rough waters over the past several years, and there are more ominous clouds on the horizon. Next term, in Moore v. Harper, the Supreme Court will hear a radical theory that would significantly disrupt our democratic processes. This independent state legislature theory is based on a tortured and incorrect reading of Article I, Section 4, and Article II of the Constitution.
While some justices have raised the theory in the past, it has never garnered the support of a majority of the Court. Should the Court embrace this theory, state legislatures will be beholden to no other entity–not state courts, governors, or even state constitutions. They would have the ability to further restrict voting rights, conduct gerrymandering at their own discretion and by their own rules, and subvert our election process.
In 2020, we saw how perilously close we came to a free and fair election being overturned as part of a coup led by the sitting–and defeated–president of the United States. The select committee investigating the Jan. 6 attack on the United States Capitol has examined, in great detail, the lengths to which former President Trump and his allies in state legislatures attempted to subvert the 2020 election. Under the radical independent state legislature theory, a state legislature in the future may have the ability to accomplish that subversion by disregarding other instrumentalities of state government and deciding the rules of an election and therefore the results itself, without any check on its own power.
If this theory is allowed to be put in practice, it remains to be seen whether or not our democracy can weather that storm.
The Supreme Court’s decision to hear Moore v. Harper is unsettling. It’s important and desirable to clarify the status of the independent state legislature doctrine well in advance of the 2024 presidential election. But if the Court does not strongly reject the theory, it could have apocalyptic consequences.
The theory threatens democracy in two ways. First, it makes it easier for state legislatures to gerrymander state congressional districts. The Supreme Court has already said that the federal Constitution provides no remedy for the partisan gerrymander. That decision assured us that state courts and state constitutions could, but it would not be terribly surprising if the Court now took back that promise.
We’ve lived with partisan gerrymanders for a while, and because both sides do it, their net effect is reduced, though it still tilts Republican. But the doctrine, in its strong form, also allows state legislatures free rein with presidential elections. At its most extreme, it suggests that a state legislature unhappy with the outcome of an election could simply declare it tainted, nullify the results, and award the state’s electors to whichever candidate it wanted. It takes little imagination to see the implications for states where the gerrymandered legislature diverges from the popular vote. Republicans control the legislatures of Wisconsin, Michigan, Pennsylvania, and Georgia—states Biden won in 2020, but whose electoral votes might be subject to legislative reassignment in 2024.
It’s one thing for the Court to be ideological, in terms of favoring some values at the expense of others. Such balancing is a necessary part of constitutional judging. It’s a different thing to undermine democracy for partisan gain. That’s what the independent state legislature doctrine does.
Mary Frances Berry
If, as expected, the Supreme Court affirms the power of state legislatures to make rules concerning elections in Moore v. Harper, it will not heighten the threat to voting rights, free and fair elections, or the very preservation of our representative democracy. Instead, it is more likely that the Court’s decision will require that Congress pass legislation like the failed For the People Act and the John Lewis Voting Rights Act. But whatever the outcome, we should prepare and not wait for a Court decision next summer to decide how to respond.
Chief Justice Roberts and Justice Thomas have already expressed the view that state legislatures have full power with possible Congressional changes concerning rules for elections. Now with a clear conservative majority the outcome seems assured. However, whatever the Court decision, the U. S. Constitution requires state legislatures to comply with anti-discrimination law, the Bill of Rights, the14th Amendment and the whole of federal and constitutional provisions that provide for elections, guarantee voting rights, and prohibit illegality in counting votes. And voters can press Congress to make changes in what state legislatures do.
A battle may be joined, but it is in no danger of being hopeless.
American democracy is at a crossroads. We have always had a diverse country that oftentimes has fundamental differences on policy. We are seeing that today between Republicans on issues like reproductive rights, orientation rights, immigration and, of course, voting rights. These reflect stark differences in policy preferences in a highly divided country. These differences have led Americans to deeply distrust the “other side.” This distrust has had real consequences when it comes to American elections, and the integrity of our democracy is at stake.
Peaceful transition of power as a result of election results had always been a constant in our country, even when elections were controversial. And for the most part, until recently, people had high levels of trust in American elections, even when their party lost. This has changed dramatically over the past several years, largely as the result of President Trump and his supporters making baseless claims about election fraud and also attempting to overturn legitimate election results. These claims have led many partisans to realize that the best way to secure political advantage is to reinsert politics into election processes.
Two important Supreme Court cases that need to be watched are Moore v. Harper and Merrill v. Milligan. Both cases reflect the fight between state partisans and advocates of competitive elections and the tension between the state and federal government in administering elections. These fights have led partisans to dig in and further separate the two sides.
At the federal level, Congress is trying to reduce the role of individuals, including the Vice President’s potential role, in not accepting election results though the passage of a bill to amend the 1887 Electoral Count Act. This is a bipartisan effort with supporters hoping to pass the law prior to the 2022 midterms. It is fair to say that how these cases are decided, and whether Congress can reform a poorly written law, will have a profound effect on how democracy in America works.
Jason Abel is a lecturer at the University of Pennsylvania Carey Law School. Abel is a partner in the Washington D.C. office of Steptoe & Johnson and chairs the firm’s campaign finance and political law practice.
Mary Frances Berry is the Geraldine R. Segal Professor of American Social Thought Emerita, professor emerita of history and Africana studies.
John Lapinski is the faculty director of the Robert A. Fox Leadership Program; director of the Program on Opinion Research and Election Studies; faculty director of the Fels Institute of Government in the School of Arts & Sciences at Penn; and director of elections at NBC News.
Kermit Roosevelt is the David Berger Professor for the Administration of Justice at the University of Penn Carey Law School.