WASHINGTON — When the North Carolina Supreme Court struck down the Republican-drawn congressional district maps in February, Rep. Tim Moore, the Republican speaker of the state’s House of Representatives, reached for some potent ammunition.
In appealing to the U.S. Supreme Court, he and his allies embraced a hitherto obscure legal argument called the "independent state legislature" theory, which critics say could upend election law if the justices embrace it in a case being argued Wednesday.
Moore said in an interview that he backed the theory because it is the only way to challenge a state court ruling that he believes was not based on law or precedent.
“This ruling by the North Carolina Supreme Court was one more ruling that many of us believed just went beyond the pale of anything we had seen a state court do and really was just a political ruling,” he said, citing other rulings with which he had disagreed.
The case, which could have a broad impact on an array of election issues, is being closely watched for its potential impact on the 2024 presidential election.
'Unlawful partisan gerrymanders'
North Carolina's Supreme Court, whose judges are elected in partisan elections, held that the 14 congressional districts — drawn by the Republican-controlled Legislature to maximize the influence of Republican voters in a state that is strongly contested by both main parties — were “unlawful partisan gerrymanders.” The court, which then had a liberal majority, said the maps violated various state constitutional provisions, one of which requires that “all elections be free.”
Voting rights advocates and Democratic voters had turned to the state court after the U.S. Supreme Court ruled in 2019 that partisan gerrymandering claims could not be heard in federal court while it left open the possibility that state courts could address the issue.
Republicans, led by Moore, immediately asked the Supreme Court to reinstate the maps. The court agreed to take up the case, but it left in place a replacement map that was used for this year’s midterm elections. Democrats and Republicans each won seven seats. In the 2020 election, using a previous map before North Carolina gained a seat as a result of that year’s census, Republicans won eight seats and Democrats won five.
The independent state legislature theory claims state legislatures have the final say over election laws, potentially shielding their actions from state courts. The argument, pushed by conservative lawyers, stems from language in the Constitution that says election rules “shall be prescribed in each state by the legislature thereof.”
Supporters of the theory, which has never been endorsed by the U.S. Supreme Court, say the language supports the notion that legislatures have ultimate power under state law, potentially irrespective of potential constraints imposed by state constitutions. Supporters of former President Donald Trump used a version of the argument in their attempts to overturn the 2020 presidential election results, and it also arose in the 2000 presidential election during the litigation in Florida that ultimately led to Republican President George W. Bush’s taking office.
The Supreme Court in 2020 refused to intervene in the various election-related cases that raised the theory, but during the litigation four conservative justices indicated some support for it, giving its supporters hope that they might be a majority willing to embrace it.
“The constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” conservative Justice Neil Gorsuch wrote when the court declined to weigh in on a 2020 case.
Bug or windshield
There are several different versions of the independent state legislature argument, varying in scope, some of which would merely limit the authority of state courts in certain circumstances and others that would go further in giving legislatures virtually unchecked authority.
A Supreme Court ruling that embraces the theory would affect not only redistricting disputes but also other election-related rules, about issues like mail-in voting and voter access to the polls, that state legislatures might seek to enact even when state courts have held that they violate state constitutions. The theory could also bring into question the power of governors to veto legislation and of state election officials to make decisions overseeing vote counts.
Moore said he did not agree with broader versions of the argument that could be used to question the certification of election results. He also said he believed that the governor had the power to veto elections legislation, a procedure cast into doubt by at least one interpretation of the independent state legislature theory.
“I would not go that far,” he said.
But he said state courts should not meddle in the Legislature’s ability to pass election laws that determine early voting rules or limit its power to pass restrictions like requiring voter identification.
“I believe those should be left to the Legislature. I really do,” he said.
Moore accepted that a ruling that weakens state courts could also benefit Democrats in future cases when they control the Legislature and the state Supreme Court leans conservative, as it will in North Carolina after some seats flipped in November’s election. (The Legislature also remains under GOP control.)
“A wise person recognizes that an argument or rule that benefits one’s political side of the aisle today is something that can hurt their side of the aisle tomorrow,” he said. “Some days you are the bug, and some days you are the windshield.”
Allison Riggs, a lawyer at the Southern Coalition for Social Justice who represents plaintiffs challenging the Republican-drawn maps, said Moore’s concessions on the scope of the theory are not reflected in the legal briefs his lawyers filed.
“I read the briefs as still arguing for a very extreme version,” she said in an interview.
Although conservatives are pushing the independent state legislature argument in aid of the Republican Party, not all conservative legal experts agree with the premise. Steven Calabresi, a founder of the Federalist Society, a prominent conservative legal group, joined a friend-of-the-court brief taking aim at the theory.
Another brief opposing the theory was filed by Thomas Griffith, a conservative former appeals court judge appointed by Bush, and other former Republican officials. A famous Republican, former California Gov. Arnold Schwarzenegger, filed a similar brief. Michael Luttig, another former conservative judge appointed by Bush, has joined the legal team defending the North Carolina ruling.
“This is the single most important case on American democracy and for American democracy in the nation’s history,” Luttig said in a recent call with reporters.
Those backing the theory in briefs filed at the court include John Eastman, the lawyer involved in Trump’s efforts to overturn the 2020 election who argued that then-Vice President Mike Pence could block the certification of President Joe Biden's victory on Jan. 6, 2021. (Top advisers to Pence, including his chief counsel, concluded that that was not within the vice president's power.)
Various conservative groups that push for greater restrictions on voting and claim that voter fraud is a major issue have also backed the theory at the court.
Democrats and voting rights activists have issued stark warnings about the potential impact of the case in light of the attempts to undermine or overturn the results of the 2020 presidential election, although many high-profile GOP candidates who denied or questioned Biden’s victory lost in this year's midterm elections. Defying expectations, Democrats won several key races in important battleground states and, perhaps more important, made inroads in some state legislatures.
Republicans no longer have control of both chambers of the Pennsylvania Legislature, for example, as Democrats won a narrow majority in the House. Democrats also flipped control of both chambers in the Michigan Legislature.
Despite those developments, Riggs, the voting rights lawyer, remains pessimistic about the future, pointing to Trump’s announcement that he is running for president in 2024, setting up the possibility of a repeat of the type of conduct that resulted in the Jan. 6 riot at the U.S. Capitol.
“It would be folly to assume we are past this election-deniers moment,” she said. “I’m not letting my guard down yet.”