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Commentary
Aidan Calvelli is a second-year student at Harvard Law School. At Harvard, he is a clinical student in the Election Law Clinic and an Articles Editor on the Harvard Law Review. He has interned with the National Redistricting Foundation and will spend the summer of 2023 as an intern with the U.S. Department of Justice Civil Rights Division’s Voting Section. Aidan holds an A.B. in Political Science from Brown University.
By Aidan Calvelli
Mar 28, 2023, 9:45 AM
This Commentary was published in collaboration with the Harvard Election Law Clinic’s sponsorship in the March 31, 2023, event, “The Supreme Court’s 2023 Voting Rights Cases: What They Mean for Democracy.“
The future of Moore v. Harper1No. 21-1271 (U.S. argued Dec. 7, 2022). is uncertain—but the harm it will cause is not. Even if the now-infamous “independent state legislature” (“ISL”) theory case gets mooted by a new decision in North Carolina, the theory’s damage to democracy is staying put.
When Moore first reached the United States Supreme Court, liberal commentators were quick to sound the alarm. Though there are multiple versions of the ISL theory, its core idea here is that the Constitution’s Elections Clause2U.S. CONST. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”). Many versions of the ISL theory argue that the world “Legislature” in the Electors Clause also refers only to the state legislature, not a more inclusive lawmaking process. Id. art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature Thereof may direct, a Number of Electors.”); Chase Cooper, Moore v. Harper and the Consequential Effects of the Independent State Legislature Theory, 1 Fordham L. Voting Rts. & Democracy F. 133, 135 (noting that proponents of the theory, primarily relying on textualist analyses, argue that when the U.S. Constitution references a state “Legislature” in both the Elections and Electors Clauses, “it refers solely to the representative legislative body—not the state lawmaking processes as prescribed by” state constitutions). confers exclusive authority to state legislatures in setting rules for federal elections, forbidding courts from ruling on those legislatures’ election regulations. Stephen Donziger called this usurpation of judicial review the end of democracy, while The Atlantic’s Barton Gellman said this absolute power for self-interested officials would render elections obsolete. Other experts saw the case as more limited—a view supported by oral argument, when a few Justices indicated their skepticism about a maximalist version of the theory. Yet most on the left, and some on the right, agreed that the likely resolution of Moore—adopting some form of the theory—would have dangerous electoral consequences.
After oral argument, as the U.S. Supreme Court was positioned to make a ruling, unusual activity appeared on the docket of the North Carolina Supreme Court. In December 2022, the state supreme court held that the state’s congressional map violated the state constitution3Harper v. Hall, 868 S.E.2d 499 (N.C. 2022).—setting up the appeal to the U.S. Supreme Court, where the ISL theory was first raised. Now, the same Republican lawmakers who had appealed Moore to the U.S. Supreme Court petitioned the state court for rehearing, seeking to use that court’s newly-elected Republican majority to overturn the partisan gerrymandering holding it had so recently made.
On March 14, this new majority took the extraordinary step of holding a rehearing, positioning the court to overturn itself at any time. This potential reversal has complicated the Supreme Court’s decision in Moore. In response to the state court’s rehearing, the Court sought supplemental briefing on whether the Moore appeal is moot, which would require the Court to dismiss the case and not rule on the ISL theory
This has left us with these two most likely4The Court could theoretically take a third path: retaining jurisdiction in Moore and rejecting the ISL theory. However, even though the Court at oral argument appeared less willing to entertain radical versions of the ISL theory, there did not seem to be a majority for upholding the North Carolina Supreme Court’s ruling. options: either the Court hears Moore and makes a ruling on the theory, or the Court moots Moore and leaves the North Carolina court to make its re-ruling. Both outcomes have threatening consequences—illustrating how the danger of the ISL theory will be hard to contain no matter what.
The first scenario is what the ISL theory critics have worried about. If the Court adopts some version of the theory in Moore, it could send elections into disarray or grant the judiciary new power to thwart electoral regulations. Even on less extreme versions of potential Moore rulings, the consequences could still be significant, giving federal courts the power to void some state court rulings.
This downside would seem to make mooting Moore a win for the liberals who feared an ISL future. Yes, an adverse state court ruling would still hurt North Carolinians, but the rest of the Nation would be spared the fallout from the Supreme Court likely adopting some version of the theory or otherwise reversing the initial decision. Some of the parties agreed in their additional briefing that mootness is the right answer: the initial plaintiffs, the North Carolina League of Conservation Voters, and the U.S. Department of Justice are each opposed to the theory, and all argued the Court lacks jurisdiction and should drop the case.
However, mooting Moore creates its own serious risks—showing that no matter what the Court does, democracy will likely be damaged. Prominent opponents of the theory, such as Professors Richard Hasen and Richard Pildes, have pointed out this problem, noting that if the Supreme Court does not decide now, it could be forced to do so after an unscrupulous state legislature tries to use the theory in the heat of the 2024 election. To them, it’s perhaps better to create more clarity now, in a moment of relative calm, than to invite electoral subversion and decide a case on the precipice of constitutional crises. Even Common Cause, who supported the North Carolina court’s first ruling and are longstanding gerrymandering critics, somewhat aligned with this position in their briefing, arguing that the Court should still rule on Moore now (though reject the ISL theory).
Yet the dangers run even deeper than these criticisms suggest. If the Court takes a future case—perhaps one closer to an explosive 2024 election—it’s likely to do so on facts that make it easier to adopt an extreme version of the ISL theory. In North Carolina, the state legislature created a specific procedure5N.C. Gen. Stat. § 1-267.1(a). for the state court to review congressional maps: “[A]ction[s] challenging the validity of any act . . . [that] redistricts . . . congressional districts . . . shall be heard and determined” by a specified three-judge panel. The fact that the legislature explicitly invited a court to intervene undermines the core idea of the ISL theory: the idea that the judiciary has no role in electoral regulation under the Elections Clause. By contrast, cases from other states do not present this complication. For example, recent or pending gerrymandering cases in Pennsylvania, Maryland, Kansas, and New Hampshire are grounded in general provisions, not redistricting-specific review-authorizing statutes, making it easier to say that those states’ legislatures did not consent to judicial intervention. With more time and better facts to coalesce around a theory, the Court might feel more emboldened to nix judicial review of some election regulations.
Moreover, ceding to North Carolina’s blatant attempt to politicize precedent would compound these dangers. It’s true that the Supreme Court does not dictate the North Carolina Supreme Court’s decisions, and that court is the supreme expositor of its own state law. Still, regardless of what the state court decides, the U.S. Supreme Court has a choice to still hear Moore. If it lets this radical rehearing alter its jurisdiction, the Supreme Court will be using a state’s norm-breaking exercise as an excuse to avoid confronting an urgent electoral question. That would send a signal that the Court is OK deferring to a partisan judiciary—and would tell future states that if they flip the partisan makeup of their courts, they can evade appeals that they might not agree with.
In either likely scenario—the Court moots Moore and rules on the theory later or decides some version of it this term—democracy will be worse off than it was before the Court took the case. Which outcome would do more harm is up for debate. But either way, the ISL theory has already entered the atmosphere, setting up conflicts between legislatures and courts that portend poorly for voters. Whether the Court resolves the theory through Moore or in future cases, the theory’s rapid rise and serious implications show that we have much more to worry about than a single decision’s mootness.
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