Dominic de Bruyn | United States Fellow
Despite traditionally claiming to represent the epitome of democratic values, the United States of America (US) has experienced a number of challenges to its political institutions in recent years. The contested 2020 presidential election culminated in unprecedented riots at Capitol Hill, raising concerns that future peaceful transfers of power cannot be guaranteed. As party officials across the country challenge various aspects of election law, several high-profile legal cases have found their way to the US Supreme Court. One of these cases deserves particular attention.
In December 2022, the nine justices on the Supreme Court will begin to consider a case (Moore v. Harper) that could have profound implications on the way federal elections are regulated. This case centres on the actions of the Republican-controlled legislature in North Carolina, which passed a congressional district map in November 2021 that would give the Republican Party 10 out of the state’s 14 seats in Congress. In February 2022, the North Carolina Supreme Court ruled that the state legislature’s map violated state constitutional provisions that require elections to be “free” and that all people receive “equal protection of the laws.” Republican lawmakers appealed the decision to the US Supreme Court in the hopes of overturning the ruling.
At the heart of Moore v. Harper is the independent state legislature (ISL) theory. This doctrine holds that the US Constitution confers the power to regulate federal elections to state legislatures alone. This interpretation is underpinned by a narrow reading of a clause in the Constitution that states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
Proponents of ISL theory contend that this clause gives state legislatures exclusive and far-reaching power to set the rules for federal elections. If the Supreme Court agrees with this interpretation, state legislatures would be free to gerrymander congressional districts and concentrate likely voters for the opposing party into a handful of districts state-wide, severely harming the competitiveness of federal elections. The concept of state legislative control over elections has some precedent, as the Constitution specifies that state legislatures, not executive or judicial entities, are empowered to set the rules for federal elections.
However, some commentators argue this misinterprets the intentions of the US’ founding fathers, who distrusted state lawmakers. The Constitution’s elections clause declares that “Congress may at any time by Law make or alter” regulations set by state legislatures. This argument posits that the Constitution’s consistent emphasis on checks and balances reflects the authors’ intention that the power of state legislatures should be constrained by the state constitutions that empower them. It would, therefore, be counterintuitive for legislatures to be immune to ordinary limits on lawmaking procedures. Indeed, in the decade after the ratification of the US Constitution, virtually every state that had a constitutional convention adopted provisions in its state constitution that regulated federal elections.
Consistent with this historical context, actions of legislative bodies to regulate federal elections have typically been subject to conventional checks and balances, including judicial review and executive veto. While the North Carolina Supreme Court’s ruling in Moore v. Harper would appear to be a straightforward application of state constitutional law, the intervention of the US Supreme Court signals a readiness by some of the US’ most senior justices to grapple with ISL theory.
In an unsuccessful emergency application to reinstate the North Carolina map earlier this year, Supreme Court Justices Alito, Thomas and Gorsuch dissented from the majority opinion, arguing that the state Supreme Court had violated the Constitution by overriding the legislature. Meanwhile, Justice Kavanaugh acknowledged the plaintiff’s arguments but ruled that the issue should be dealt with in an ordinary case, rather than an emergency application. With at least four out of nine Supreme Court justices open to the idea of supporting the ISL argument, there is a distinct possibility of a ruling in favour of North Carolina Republicans. This would provide state legislatures with far-reaching control over congressional elections, potentially leading to a historic change to long-lasting democratic tenets.
The Supreme Court has traditionally rejected ISL theory in cases involving electoral law. In 2000, Arizona voters supported a referendum to amend the state constitution to remove the legislature’s congressional redistricting power and vest it in an independent commission. In a 2015 case, the Supreme Court upheld the role of Arizona’s independent commission, arguing that the Constitution’s elections clause did not remove ordinary constraints on the authority of state legislatures, including direct referendums. In a 2019 case, all nine Supreme Court justices agreed that state constitutional provisions can constrain partisan gerrymandering.
Many Americans – and people elsewhere – see the US’ institutions and judicial processes as bulwarks against anti-democratic trends. However, as demonstrated by the Supreme Court’s recent decision to overturn the 1973 Roe v. Wade ruling, established precedent cannot be taken for granted. The forthcoming ruling in Moore v. Harper may set a new course for federal electoral law and grant state legislatures significant new powers.
Dominic de Bruyn is the United States Fellow for Young Australians in International Affairs. The views expressed in this article are those of the author and do not reflect those of any other entity.