Tomorrow, the U.S. Supreme Court is scheduled to hear oral arguments in the case of Moore v Harper. Although I try not to read too much into this, it is also the day the Japanese bombed Pearl Harbor in 1941. You may have heard this case described as the “Independent State Legislature” case, or the “Election Clause” (U.S. Constitution Article I, §4) case. There likely will be no decision until sometime next year, but sometimes one can get a sense of which direction Justices are leaning during oral arguments.
This article is long, but it is important that all of us understand what it at stake. You may want to skim through and pick what you need/want from the links. Below is a synopsis of what the case is about, a summary of the parties involved, and a brief discussion of the numerous amici briefs filed in the case. At the end, I accommodate my fellow legal nerds with links to all of the briefs. Civics educators and pro-democracy advocates are free to use any part or all of this article.
The Case
Gerrymandering is the practice of slicing and dicing the boundaries of Congressional districts in order to favor certain constituencies. The 1965 Voting Rights Act was gutted in Shelby County v Holder, (2013), but it is still technically illegal to reapportion districts for the purpose of diluting votes based on the race of the voters. However, it is perfectly legal (according to the Supremes) to reapportion districts for partisan advantage. Although there is often some overlap between “partisan advantage” and racial animus, this is usually very hard to prove. The biggest complaint against gerrymandering is that it operates to favor incumbents, essentially allowing representatives the ability to pick their voters instead of the other way around. About a dozen states have instituted bipartisan or independent redistricting commissions in order to get around this problem.
Gerrymandering in the state of North Carolina is at the crux of Moore v Harper.
North Carolina is even more infamous for gerrymandering than Texas: It contains three of the ten most gerrymandered districts, and it ties Maryland for the most gerrymandered state. North Carolina’s 12th District—the winner of the most mathematically gerrymandered district in the country—has a gerrymander index score of 97.09. North Carolina’s First District—the other district which is at issue in the case—has a gerrymander index score of 96.01.
Following the 2020 census, the state of North Carolina gained an additional seat in the U.S. Congress. While this seat was created primarily by population growth in Democratic-leaning regions, the Republican-dominated General Assembly redrew the maps by splitting three Democratic-leaning counties, even though there was “no population-based reason” to do so. This case was brought by 25 voters residing in 14 districts affected by the 2021 map. The voters challenged the map alleging that it violated the Free Elections Clause, the Equal Protection Clause, and the Free Speech and Assembly Clause of the North Carolina Constitution. Some of the Harper plaintiffs had previously challenged a 2016 gerrymandered map with the same arguments and had been successful.
When the case (here titled Harper v Hall) reached the NC Supreme Court, the Court agreed with the voters and ordered the districts to be redrawn in a manner to comply with the state Constitution. The NC Supreme Court opinion begins by affirming the responsibility of the judiciary to protect the constitutional rights of its citizens. Although the General Assembly (the state legislature) has a duty to reapportion congressional and state legislative districts, this power is circumscribed by the state’s constitution, particularly the Declaration of Rights. Moreover, the NC Supreme Court affirmed the findings of the trial court –-which were “supported by competent evidence” and now “adopted in full”—that the gerrymandered maps were unconstitutional because they operated to dilute citizens votes based on party affiliation and thus precluded “substantially equal legislative representation.”
Chief Justice Newby dissented, arguing (citing the 2019 Rucho v Common Cause—which held that partisan gerrymandering claims were nonjusticiable) that the Court’s action was an “unprecedented expansion of judicial power.” The full opinion is over 200 pages (including concurring and dissent), but it is a good explanation of how voters can be disenfranchised by proxy, as well as a good discussion of the technical issues around “partisan malapportionment.”
The losing legislators then filed this action in the U.S. Supreme Court. The main premise of their challenge is that the judicial and executive branches have no authority to review or regulate legislative maps. What this does in operation is totally remove the traditional checks and balances by state judicial and executive branches. It is my opinion (based on circumstantial evidence that is apparent to most of us) that the ultimate objective is for far right extremists to gerrymander themselves into power in state legislatures—where they will now be unaccountable to anyone—and establish one-party authoritarian rule (like that which currently exists in China or Russia). In essence, Moore v. Harper is a legal continuation of the same plot that resulted in January 6th.
The Supreme Court granted certiorari (agreed to brief and hear the case) on June 30, 2022. The sole question presented is
“whether a State's judicial branch may nullify the regulations governing the "Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof," U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts' own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a "fair" or "free" election.”
Unfortunately, the way the question is framed totally perverts the issue and suggests what the right answer should be. This already looks dangerous for democracy.
The main basis of the argument is that judicial (and executive) review of legislative redistricting is precluded by the so-called “Election Clause” of the U.S. Constitution:
U.S. Constitution Article I, § 4: “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.”
On November 7th, the Supreme Court granted the Respondents motion for divided argument and for enlargement of time for oral argument. It also granted the US Solicitor General (the U.S. Department of Justice) leave to participate in oral argument as amicus curiae.
A Note on the Doctrine of Abstention
A line of cases with roots in federalism requires federal courts to “abstain” from hearing a case over which they have jurisdiction in order to allow state courts to adjudicate matters that are of particular state interest. Abstention conflicts tend to appear in cases of constitutional challenges to state laws. Matters of state interest can involve interpretation of a state’s own constitution. In the classic abstention case of Younger v Harris, the U.S. Supreme Court refused to interfere with the prosecution of a defendant under California’s Criminal Syndicalism Act because the defendant had not been subject to unlawful or unconstitutional actions of the criminal justice system. The abstention doctrine has also been applied in non-criminal cases: federal courts were enjoined from interference in New Jersey State Bar disciplinary proceedings—an issue which might actually come up again with all the state bar disciplinary proceedings currently pending against attorneys attempting to overthrow the 2020 election.
The Parties
The appellants (the usual term for the party losing in the lower court), here termed applicants until certiorari was granted (at which time they become Petitioners) are: NC Speaker of the House Timothy Moore, NC Senate President Pro Tempore Philip E. Berger, Chair of the NC House Standing Committee on Redistricting Destin Hall, Co-chairs of the NC Senate Standing Committee on Redistricting and Elections Ralph E. Hise and Paul Newton. In short, probably the guys who drew the gerrymandered maps.
The appellees (the parties who want the decision of the lower court to stand, now termed Respondents) comprise three separate groups or entities. I am listing all of them here to remind folks that the fight for democracy often is born by the efforts, angst, and pocketbooks of real people. If anyone from North Carolina recognizes one of these heroes, you may want to thank them. The first is a group of individual voters: Rebecca Harper, Amy Clare Oseroff, Donald Rumph (yes, I had to check the name twice myself), John Anthony Balla, Richard Crews, Lily Nicole Quick, Gettys Cohen, Jr., Shawn Rush, Jackson Thomas Dunn, Jr., Mark S. Peter, Kathleen Barnes, Virginia Walters Brien, and David Dwight Brown.
In the second group of Respondents are the North Carolina League of Conservation Voters, an environmental and climate justice organization and associated individuals: Henry M. Michaux, Jr., Dandrielle Lewis, Timothy Chartier, Talia Fernos, Katherine Newhall, R. Jason Parsley, Edna Scott, Roberta Scott, Yvette Roberts, Jereann King Johnson, Reverend Reginald Wells, Yarbrough Williams, Jr., Reverend Deloris L. Jerman, Viola Ryals Figueroa, and Cosmos George.
The third Respondent is Common Cause, a voting rights and pro-democracy advocacy organization which some here may be familiar with. Common cause intervened in the case after the original filings.
The Amici
In addition to the briefs filed by all the parties, sixty-nine briefs have been filed by other persons and groups having (or claiming to have) an interest in the case. Most of the earlier-filed briefs are supportive of the appellant-Petitioners, suggesting that many of them had some prior notice that this was coming.
Briefs from 16 organizations, individuals or groups were filed in support of the Petitioners. Names appearing on some of them include attorneys and others who are known to be associated with 2020 election denial and/or January 6th. The motives of these individuals should be immediately suspect, regardless of their legal arguments. Overall, 48 briefs were filed in support of Respondents, with thirty-eight of them filed on October 26th. Five briefs were filed which may not necessarily be characterized as “neutral,” but address alternative ways of dealing with redistricting without invoking the independent state legislature theory.
If I had to recommend a single brief, it is the one filed by U.S. Senator Sheldon Whitehouse (RI) and Rep. Henry “Hank” Johnson, Jr. (GA). There is no link to the brief available on the Supreme Court docket list (as of Monday, 12/5), but you can get it from Sen Whitehouse’s web page. They begin with “[We] share with this Court a strong interest in ensuring free and fair elections, as well as preventing corrupting influences from undermining our democracy and our independent judiciary. What follows is documentation of a democracy in “crisis,…[where] majorities of Americans have lost faith in our democracy and institutions.” They also hit the Supreme Court with their own low public approval polls.
The Whitehouse & Johnson brief then proceeds to document that the “swarm of briefs” supporting Petitioners comes from the same sources who pushed “fringe legal theories deployed in a failed legal plot to overturn the results of the 2020 presidential election.” Moreover, Petitioner’s amici share “undisclosed connections to each other through common funders, counsel, and personnel, as well as to dark-money funders….” Whitehouse and Johnson argue that they are only able to “partially fill in” information that should have been disclosed to the Court and the public.
Dark Money chart from Appendix of Whitehouse-Johnson Brief
After describing the nefarious connections between Petitioner’s groups and persons, Whitehouse and Johnson argue that the Court should not give credibility to groups that plot to subvert American elections and regard with “great skepticism” amici who are “affiliated with a massive dark-money effort to control Court appointments.” They then trace dark money running through the Federalist Society (Leonard Leo) as well as “fictitious” entities created to funnel tens of millions of dollars: the oxymoronic Honest Elections Project, the Judicial Crisis Network, and the 85/Concord Fund. They even urge the Court to “protect itself [from] the opaque walls of secrecy [which] obscure any complete understanding of this whole $580 million operation.”
“This case provides yet another opportunity for the Court to begin cleaning up the mess. This should start with the Court rejecting the radical arguments of the dark-money anti-democratic election-denial network that has gathered in this case.”
So what result is most likely to happen? If this was strictly a math problem—add up all the briefs in favor of each party—the numbers would favor the voters and pro-democracy groups. The logic (i.e., the Constitutional l text and history), as well as the equities also favor the pro-democracy side. Even conservative former Reagan White House Counsel and U.S. Judge on the Fourth Circuit Court of Appeals J. Michael Luttig (who also testified at the January 6th hearings) argues that there is nothing in the text or history of the constitution to support the independent state legislature theory.
However, we defend democracy with the Supreme Court we have and not the Supreme Court we might like to have. This is the Court that has already gutted the Voting Rights Act. This is the Court that gave us Citizens United and Dobbs. This is also the Court that turned away the 2020 election “fraud” (i.e., the “Big Lie”) cases. The biggest question is why did they agree to hear this one? The Petitioners have a valid (if disingenuous) argument that election-related matters should be left to elected legislatures and not to unelected judges. There are also arguments from some of the “neutrals” that we are dealing with an antiquated, fragmented system which has perennially struggled to accommodate the interests of quasi-independent states while maintaining national cohesion. We may be overdue to have updated definitions with less ambiguity. But can we trust this Court to protect the voices of regular people?
For all the fellow legal nerds, below I have provided links either to the brief or to the website of the relevant group. The much longer list for Respondents’ briefs has been organized into categories, so it is easier to find specific briefs or groups without having to scroll through the entire docket. If you want to read a brief where I have instead linked to the organization’s web page, you can view all the documents filed in the case here.
Briefs of the Parties
Petition for Writ of Certiorari
Brief in Opposition by NC State Respondents
Brief in Opposition by Common Cause
Brief in Opposition by Rebecca Harper et al
Main Brief of Petitioners
Brief of State Respondents
Consolidated Brief of Non-State Respondents
Briefs Supporting the Petitioners
National Republican Redistricting Trust
White House Watch, an organization that appears to have been created specifically for this purpose.
Restoring Integrity and Trust in Elections, Inc. William Barr and Karl Rove are on the Board of Directors.
Wisconsin Voter Alliance, a group with a Facebook page that attempted to throw out the results of the 2020 election. Erick Kaardal, a MN attorney who was active in filing “election fraud” cases around the country, is the attorney on this case.
Taxpayers for Honest Elections, another group with a skimpy web page whose main achievement seems to be filing a brief in Moore v Harper.
Public Interest Legal Foundation, an “election integrity” group that has been around since 2012. Cleta Mitchell is on the Board of Directors.
The Claremont Institute Center for Constitutional Jurisprudence. Yes, John Eastman is the counsel of record here.
American Legislative Exchange Council (ALEC) This is a well-known (and well-funded) group that sponsors “model” state legislation in favor of corporate and plutocratic interests, such as right to work, anti-union, anti-minimum wage and general anti-worker laws.
APA Watch, an organization with a very bare-bones web page. Lawrence Joseph, the attorney on this case, also appeared as counsel in the now infamous State of Texas v Commonwealth of Pennsylvania et al and Gohmert v Pence.
Republican National Committee. (Self-interest is obvious)
American First Legal Foundation, which purports to be fighting against “lawless executive actions and the radical left.” Its President is Steven Miller.
Lawyers Democracy Fund, purports to be a “non-partisan, election integrity” group. The individual legislators are listed at the end: one from Missouri, one from Pennsylvania, 3 from South Carolina and 7 from Texas.
Citizen’s United (yes, that Citizens United).
Honest Elections Project.
America’s Future. General Michael Flynn is on the Board of Directors.
Attorneys or Solicitors General from the states of Arkansas, Alabama, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas (election-denier Ken Paxton), and Utah
Pennsylvania state Senator and leader of the Republican Caucus Kim Ward
Briefs Supporting Respondents from Pro-Democracy Groups
American Civil Liberties Union
Also on this brief are the ACLU of North Carolina, the Rutherford Institute (a right-leaning organization that focuses on religious liberties) and the Niskanen Center, a climate, immigration rights and criminal justice advocacy organization.
Brennan Center for Justice, NYU School of Law
Campaign Legal Center This brief is joined by Democracy 21, end Citizens United/Let America Vote action Fund, National Council of Jewish Women, Inc, Onevirginia2021, RepresentUs, Republican Women for Progress, Unitarian Universalists for Social Justice, and Voters Not Politicians.
Lawyers Defending American Democracy. This sweet, relatively short (14 pages) brief hits the main points: (1) Petitioner’s interpretation of the Election Clause would preclude state court review of all districting and federal election laws; (2) the case cannot be resolved solely on the Election Clause; (3) Petitioner’s interpretation disregards “framers deep commitment to written constitutions as superior to legislatures’ enactments.” When faced with two competing interpretations, LDAD urges the Court that it should NOT adopt an interpretation (especially one that is “colorable”) that undermines the rule of law and threatens American democracy.
Public Citizen
Law Forward, a pro-democracy advocacy group in Wisconsin
Fair Districts Now, a non-partisan Florida nonprofit advocating for fairness and transparency in redistricting
Women4Change Indiana
Making Every Vote Count (advocates for a national popular vote) and Leadership Now Foundations
Briefs Supporting Respondents from Republican Groups or Individuals
Former Republican elected officials/administrators Thomas Griffith, John Danforth, Larry Thompson, Barbara Comstock, Peter Keisler, and Stuart Gerson, who argue that the interpretation of the Election Clause as urged by Appellant/Petitioners would create inconsistency
Former California Governor Arnold Schwarzenegger
Former Republican Elected and Executive Branch Officials
Benjamin L. Ginsberg Ginsberg is a Republican who argued in Bush v Gore
Briefs Supporting Respondents from Election Administrators
These folks range from Secretaries of State to local election officials; i.e., the folks who are responsible for actually running elections. They argue that what Petitioners propose will create chaos in the electoral system and is basically unworkable.
Current and Former Election Administrators
Secretaries of State of Colorado, California, Connecticut, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington
Bipartisan Current and Former Election Officials Donetta Davidson, Tracy Howard, Neal Kelley, Roxanna Moritz, Helen Purcell, Al Schmidt, Deforest Soaries, and Janice Winfrey
Bipartisan Group of Former Public Officials, Former Judges, and Election Experts from Pennsylvania
The National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association
Local Government Law Professors. Describes the impact on local government officials
League of Women Voters
Richard L. Hasan
Briefs in Support of Respondents from Major Institutional Players
The United States
Attorneys/Solicitors General from District of Columbia, Illinois, California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.
US Senators Amy Klobuchar (D-Minnesota); Richard J. Durbin (D-Illinois); Angus King (I-Maine); Jeff Merkley (D-Oregon); Tammy Baldwin (D-Wisconsin); Richard Blumenthal (D-Connecticut); Cory A. Booker (D-New Jersey); Sherrod Brown (D-Ohio); Robert P. Casey, Jr. (D-Pennsylvania); Christopher A. Coons (D-Delaware); Mazie Hirono (D-Hawaii); Ben Ray Luján (D-New Mexico); Edward J. Markey (D-Massachusetts); Patty Murray (D-Washington); Bernard Sanders (I-Vermont); Jeanne Shaheen (D-New Hampshire); Tina Smith (D-Minnesota); Chris Van Hollen (D-Maryland); Elizabeth Warren (D-Massachusetts); Ron Wyden (D-Oregon).
Puerto Rico House of Representatives
American Bar Association
Retired Four-Star Admirals and Generals and Former service Secretaries of the Armed Forces This brief proposes that Petitioner’s scheme will damage public faith in elections, disenfranchise active duty military voters, undermine election integrity, and pose a threat to national security.
NC Senator Daniel T. Blue and NC Rep. Robert T. Reives, II
Briefs from Academic Historians Supporting Respondents
These briefs counter Petitioners arguments that the drafters of Article I, §4 intended to circumvent judicial review.
Professors Akhil Reed Amar, Vikram David Amar, and Steven Gow Calabresi.
Scholars of the Founding Era, American Revolution academic historians
State Constitutional Historians Lawrence Friedman and Robert F. Williams
The Constitutional Accountability Center. Fulfilling the progressive promise of the Constitution’s text and history.
Carolyn Shapiro, Nicholas O. Stephanopoulos, and Daniel P. Tokaji
Eugene Goldberg
Professor Evan Bernick
William M. Treanor
State Constitutional Law Scholars
Charles Plambeck and Joni Walser. These natives of North Carolina explain the historical origins of North Carolina’s Free Elections Clause. “Divergences from popular accountability are the sources of the most shameful chapters of the state’s history. The present welfare of its people depends directly on the responsiveness of its representatives.”
Briefs Supporting Respondents to Preserve Equal Rights for Racial and Religious Minorities
The Anti-Defamation League, The Sikh Coalition, the Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, and Men of Reform Judaism
NAACP Legal Defense and Educational Fund
Boston University Center for Anti-Racist Research and Professor Atiba R. Ellis
Democracy and Race Scholars
Lawyers Committee for Civil Rights Under Law
Briefs Supporting Neither Party or Unique
These briefs suggest other ways to resolve the underlying dispute that do not involve adopting the Independent State Legislature Theory, or raise other issues.
Arizona Independent Redistricting Commission.
Missouri Secretary of State John R. Ashcroft agrees that redistricting should be the sole province of legislatures, but makes the unique argument that this authority does not derive from US Const Art 1 §4 (the Elections Clause) because it does not involve the “Times, Places, and Manner of holding elections.”
Conference of Chief Justices. The basic argument here is that the Constitution assigns final decisions about state law to state courts, and federal courts must give these decisions proper deference (i.e., the abstention doctrine). “Any federal judicial review of state decisions about state election law should involve a clear and workable standard to prevent unnecessary intrusions on state sovereignty.”
Group of New York voters who successfully challenged a legislative redistricting map in 2020 for violating the NY state constitution.
Steven Shapiro, a lawyer representing himself in his individual capacity as a voter, argues that the Supreme Court lacks jurisdiction to hear the case because the Petitioners have not suffered an infringement of an identifiable right.
Michael Rosen
Human Rights Watch, an international human rights organization based in New York that claims it “accepts no money from any government.” HRW argues that the Independent State Legislature Theory would both violate various U.S. treaties as well as compromise the United States’ traditional role as the standard bearer of democracy.
Professor Derek T. Muller