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Commentary
Julie Ebenstein is a Senior Staff Attorney with the ACLU Voting Rights Project. Ms. Ebenstein has litigated voting rights matters across the country, including challenges to felony disenfranchisement laws, discriminatory voter suppression laws, dual voter registration systems, and rejection of absentee ballots. Her commentary has been quoted in noteworthy publications, such as NBC News, ABC News, Marketplace, Mother Jones, and the New York Times. In 2018, she published an article in the Fordham Urban Law Journal on prison gerrymandering and felony disenfranchisement laws, entitled “The Geography of Mass Incarceration: Prison Gerrymandering and the Dilution of Prisoners’ Political Representation.” Previously, Ms. Ebenstein worked at the ACLU of Florida and was a Tolan Fellow with the Lawyers for Human Rights. Ms. Ebenstein is a graduate of Fordham University School Law School.
By Julie Ebenstein
May 23, 2023, 10:00 AM
In April 2023, the North Carolina Supreme Court dismantled voting rights protections in three pivotal cases. Each has harmful outcomes for voters and democracy, but the court’s decision to permit extreme partisan gerrymanders may have broader implications for redistricting nationwide.1Notably, two of the decisions—Harper v. Hall and Holmes v. Moore—originated from cases that were decided by the state supreme court just a few months back. Although this Commentary focuses on the implications of the state supreme court’s overruling in Harper v. Hall, both Holmes v. Moore, No. 342PA19-3, 2023 WL 3136531 (N.C. Apr. 28, 2023) (reinstating a strict voter photo identification law) and Community Success Initiative v. Moore, No. 331PA21, 2023 WL 3136064 (N.C. Apr. 28, 2023) (upholding the state’s felony disenfranchisement law that revokes voting rights from over 56,000 North Carolinians) are, of course, notable. Following the 2022 midterms, the state’s high court gained a five-to-two Republican majority.2Supreme court justices are elected in partisan elections in North Carolina. Before the 2022 midterms, Democrats held a four-to-three advantage on the state’s high court. In Harper v. Hall,3No. 413PA21-2, 2023 WL 3137057, at *3 (N.C. Apr. 28, 2023). the court opted to review and overturn its own decision prohibiting partisan gerrymandering. The court held that claims of excessive partisanship are nonjusticiable,4See id. at *19. leaving North Carolinians with no venue to redress extreme partisanship in their congressional district maps.
The U.S. Supreme Court had already granted certiorari in the case in Moore v. Harper,5No. 21-1271 (U.S. argued Dec. 7, 2022). which was briefed, argued, and awaiting decision. The case hinges on a novel proposition known as the “independent state legislature” (“ISL”) theory. The theory asserts that, when it comes to drawing congressional district maps, only the state legislature itself has the power to set the rules. The theory claims that state legislatures’ power is exclusive and exempt from the requirements of a state’s own state constitution or review by its courts. Moore presents the questions of whether the Elections Clause of the U.S. Constitution authorizes state courts to interpret their constitution under their own state constitutional power of judicial review, and whether congressional redistricting is the province of the state legislature alone.
Following the April 2023 North Carolina Supreme Court decision in Harper v. Hall, the U.S. Supreme Court ordered supplemental briefing on whether the new decision rendered Moore moot and no longer subject to review. On Thursday, May 11, the parties in Moore submitted their briefs. Should the Court decide the case is nonjusticiable, as all but one of the Respondents argued it should, where does that leave the ISL theory in this redistricting cycle?
The question may still be answered this term, if the Justices want to weigh in on the independent state legislature theory. In Huffman v. Neiman,6See generally Petition for Writ of Certiorari, Huffman v. Neiman, No. 22-326 (U.S. 2022). a partisan gerrymandering challenge to Ohio’s congressional maps, state defendants raised similar questions about the authority of the state court to interpret the state constitution when it comes to laws affecting federal elections.
In 2018, Ohio sought to end partisan gerrymandering by amending its state constitution. The legislature adopted, and Ohioans overwhelmingly approved, a ballot measure prohibiting the simple majority passage of a congressional district plan that “unduly favors or disfavors a political party or its incumbents.” In 2021, the Ohio legislature undertook congressional redistricting based on new decennial census data and passed a four-year redistricting plan along party lines. The plan positioned the Republican party, which generally wins no more than 55 percent of the popular vote in Ohio, to reliably win at least 75 percent of the congressional seats in Ohio.
The Ohio Supreme Court invalidated the plan as an unconstitutional partisan gerrymander and directed the state legislature to draw new maps.7See Neiman v. LaRose, 207 N.E.3d 607, 616 (holding that the plan “unduly favors the Republican Party and unduly disfavors the Democratic Party in violation of” the state constitution), petition for cert. filed, Huffman v. Neiman (U.S. Oct. 18, 2022) (No. 22-326). Instead of drawing a new compliant map, Ohio sought certiorari from the U.S. Supreme Court. Like the Republican-controlled General Assembly in North Carolina, the Ohio lawmakers argue that the Constitution’s Elections Clause prohibits the Ohio court from reviewing the state legislature’s congressional plan and from interpreting its own state constitution’s prohibition on partisan gerrymandering.
The ISL theory is misguided, and the Court should decline to hear the Ohio case and moot the North Carolina case. Proponents of the theory contend that state legislatures can exercise authority to regulate federal elections immune to the checks and balances that typically apply to state legislative actions. But the term “Legislature” in the Elections Clause cannot be separated from the state constitution that creates, defines, and constrains it. It is state courts’ role to interpret its own state constitution. Several legal scholars have pointed to the fact that there is scant evidence that the Framers intended the Elections Clause to empower state legislatures to violate their own state constitutions.8See, e.g., Vikram D. Amar & Akhil Amar, Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, 2021 Sup. Ct. Rev. 1, 19–22 (2021). Indeed, evidence establishes that “the public meaning of state ‘legislature’” was clearly understood as an entity created and constrained by state constitutions.9See id. For example, four of the six state constitutions adopted or revised after the U.S. Constitution’s adoption in 1789 explicitly restricted state legislature power over federal elections.10See id.
While the North Carolina Supreme Court has the same authority to interpret its constitution to prohibit partisan gerrymandering,11The North Carolina high court’s previous decision had struck down the congressional map, calling it an “egregious and intentional partisan gerrymander” violative of the state constitution. In April 2023, however, the court ruled that its 2022 decision was wrong, and instead held that partisan gerrymandering claims are nonjusticiable under the constitution: “[C]reating partisan redistricting standards is rife with policy decisions. Policy decisions belong to the legislative branch, not the judiciary.” Harper v. Hall, No. 413PA21-2, 2023 WL 3137057, at *3 (N.C. Apr. 28, 2023). the Ohio case presents a more striking example of the explicit role of judicial review in interpreting the state constitution to cabin redistricting. Where, as in Ohio, the state legislature itself expressly authorized the state court to enforce state constitutional limits on the power of state legislatures to regulate congressional elections, there can be no doubt that the Elections Clause permits state courts to carry out that function. The Ohio Supreme Court properly interpreted the state constitution’s ban on partisan gerrymandering and struck down the legislature’s excessively partisan congressional maps.
The U.S. Supreme Court, however, may still review the issue to provide a definitive interpretation of state courts’ authority during this frenzied time for redistricting litigation. On the unlikely chance that the Court reviews this matter and rules in the Ohio Republican lawmaker’s favor, state legislatures would operate virtually unchecked by state constitutions. In effect, voters would lose one more avenue protecting their voting rights.
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