Wednesday, June 28, 2023

Reaction to SCOTUS's Decision in Moore v. Harper

By Christopher Cooper

Nearing the end of its term, the U.S. Supreme Court announced its decision in the highly anticipated Moore v. Harper case. Here are some quick reactions as to the critical points of the opinion (Michael Bitzer and I will likely have smarter and more informed takes after some more time has passed and after we've had a chance to read it a few more times). 

Before we descend into the weeds, I'm going to pull back and attempt to provide a 10,000 foot nuance-free summary of how we got to this point. If you're the kind of person who has strong opinions on the independent state legislature theory (ISL), or is prepared to weigh in on the relative weight we should apply to so-called "natural packing" v. gerrymandering, this summary is not for you. 

If, however, you've been paying attention to other things (hello: College World Series fans) and want to catch up quickly, this is for you. Just remember, as a nuance-free summary, it might get you through a cocktail party conversation, but not one filled with politicos or election lawyers.

Background: There has been a ton of back and forth about NC redistricting. One iteration of the NC Supreme Court (with a Democratic majority) said that a certain set of maps drawn by the Republican legislators in North Carolina represented 'unconstitutional partisan gerrymanders.' The next iteration (this time, with a Republican majority on the state's highest court) said 'No they don’t. Oh, & by the way, we don’t buy that you have a standard that we can apply.'

OK, Fine, but when did this Independent State Legislature theory get involved?  The defendants then transmogrified into plaintiffs (Harper v Moore became Moore v Harper) and argued before the U.S. Supreme Court (SCOTUS) that the elections clause (pasted below) in the U.S. Constitution says that state legislatures are in sole control of congressional elections. Full stop. No one--including state courts--should be able to infringe upon their power or else they're running foul of the U.S. Constitution. 

Essentially, the plaintiffs are arguing, “You've read the U.S. Constitution, right? Well, what part of 'the Legislature thereof' do you not understand?” This (in nuance-free terms) is the basis for ISL:

Article I, Section 4, Clause 1 of the U.S. Constitution

What Was the Other Side Arguing? They argued that the ISL theory runs counter to both judicial precedent and common sense. Of course state legislatures can't just do whatever they want when it comes to congressional elections. That language in the Constitution doesn't preclude the ability of state courts to put some guardrails on the legislature and previous court decisions have been consistent on this point. The doomsday scenario from voting rights advocates was that if the U.S. Supreme Court adopted a "radical" view of ISL, no one could stop state legislatures from what they wanted to do in terms of federal election law.

What Does This Mean for Whether We Will Get New NC Maps? Here's the odd thing: North Carolina was going to get new congressional, State House and State Senate Maps regardless of what the U.S. Supreme Court said today. I know, weird, right? So, the fight wasn't about whether we'd get new maps in 2023, but about whether application of ISL would make it so that state courts couldn't tell state legislatures that they've gone too far.

What Happened? SCOTUS ruled 6-3 for the defendants (Harper, or those who originally challenged the NC maps). 

Of the six in the majority, the three liberals joined with three conservatives (Justices Kavanaugh, Barrett, and Chief Justice Roberts), while the remaining three conservatives—Thomas, Alito, and Gorsuch—dissented from the majority. Chief Justice Roberts authored the majority opinion, with Kavanaugh agreeing to the outcome but offering some of his own thoughts in a concurrence, and Thomas writing for the dissenters. 

Here’s a condensed breakdown of the main arguments of all three writers (if you've got the time you're better off reading the opinion in the original):

The Majority said: You can’t just discount the role of state courts & say legislatures can do whatever they want. That's not what the founders wanted and that's not what previous courts have decided. State courts absolutely have a role to play (!)...but we won’t define exactly how far that role extends. Seems like a good idea at some point, though.

The Concurring opinion said: I agree! Oh, and Justice Rehnquist might have given us a good standard to use to say where the line is.

The Dissenting opinion said: This case is moot anyway. There's nothing to see here. Oh, and the majority didn't give us any guidelines to say when a state court oversteps its bounds. This is going to create a big ol' mess.

Four (Slightly) More Nuanced Thoughts

1) This one is already being viewed in terms of partisan wins and losses (a "win" for Democrats and a "loss" for the Republican plaintiffs), but that's not really the right frame, in my opinion. If SCOTUS went the other way, the Democratic legislators in New York would have gained just as much power today as the Republican legislators in North Carolina. What's good for the goose is good for the gander, and all of that. So, yes, a win for voting rights advocates, but not a loss for the Republicans any more than it's a loss for Democratic state legislators in New York.

2) Speaking of wins and losses, yes, this is a "win" for Harper, but the devil is in the details (ironic, given the lack of details in this write-up). SCOTUS didn't embrace ISL, but nor did they completely reject it. They said there is absolutely a place for the courts....except when there's not. But where that line is isn't (at least at this time) crystal clear.

3) In Rucho v. Common Cause (another case that came out of NC), SCOTUS kicked the redistricting ball back to the state courts, saying that "partisan gerrymandering claims present political questions beyond the reach of the federal courts." With Moore v. Harper, they appear to be setting the federal courts up for more business on the redistricting front.

4) State Supreme Court elections were already highly partisan, expensive, closely watched affairs. This decision is only going to add fuel to a fire that's already burning.

There will be plenty of digesting and analyzing this important decision for American democracy and politics over the coming weeks, months and years. But one thing is for certain: North Carolina has, once again, provided an important case regarding redistricting and election laws that harkens back to the 1980s. The five-decade streak of critical constitutional law from the Old North State remains unbroken.


Dr. Christopher Cooper is the Madison Distinguished Professor of Political Science and Public Affairs at Western Carolina University, where he serves as director of WCU's Public Policy Institute. He tweets at @chriscooperwcu.