Extremely Odd Bedfellows Urge Supreme Court To Issue Decision On Independent State Legislature Theory

One group argues that SCOTUS should just decide now, as opposed to waiting for a nightmare 2024 election scenario.
Republican speaker of the North Carolina House of Representatives, Tim Moore, speaks to the press in front of the US Supreme Court in Washington, DC, on December 7, 2022. -(Photo by OLIVIER DOULIERY / AFP) (Photo by ... Republican speaker of the North Carolina House of Representatives, Tim Moore, speaks to the press in front of the US Supreme Court in Washington, DC, on December 7, 2022. -(Photo by OLIVIER DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images) MORE LESS
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The Supreme Court sought guidance as it asked the parties in Moore v. Harper, the term’s banner election law case, to explain what it should do with the case now that the North Carolina Supreme Court is rehearing the underlying redistricting dispute.

What it got was six responses, many of which cut in slightly different directions. Two diametrically opposed parties, though, full-throatedly urged the Court to proceed with the case. 

The case centers on district maps passed by the North Carolina legislature, which the state Supreme Court found last year to be severely gerrymandered to favor Republicans. Republican legislators had premised some of their argument on the independent state legislature theory (ISLT), an idea out of the right-wing legal world that holds that only state legislatures — to the exclusion of state courts, constitutions and governors — can administer federal elections in their states, which includes drawing congressional maps. Thus, these lawmakers say, we can draw the lines however we like with no check on our power. If the Supreme Court were to accept the argument, experts have warned, it could have wide-reaching implications for how American elections are conducted.

With the 2022 midterms came an influx of right-wing judges onto the North Carolina bench, who agreed to state Republicans’ long-shot bid to get the court to rehear the case. The decision was as unprecedented as it was nakedly political: the Republican judges now have the votes to reverse the state court’s one-year-old decision, and to clear the way for the Republican legislators to pass a map contorted to their liking. The right-wing justices seemed very amenable to overturning the court’s own decision knocking down the maps in last week’s oral arguments. Notably, the ISLT was not raised. 

That all put the Supreme Court — which had already received briefing and oral argument on the case — in a bit of a bind. Earlier this month, it asked the parties to submit briefings advising on whether it still has jurisdiction over the case. 

The two parties arguing that the Court absolutely still has jurisdiction over this case and should issue a decision validating or knocking down the ISLT come from starkly opposed poles.

One, unsurprisingly, is North Carolina House Speaker Timothy Moore (R). North Carolina legislators could potentially get a greenlight to gerrymander maps and a Supreme Court decision giving them unfettered power over federal election administration in their state. Good deal for him.

The other, in a twist, is Common Cause, a left-leaning good government watchdog group. But this group argues that the Court should make its decision now with a very different motive.

“This Court should not wait until this question comes before it on an emergency basis in the lead up to the 2024 election cycle,” Common Cause’s lawyers wrote. “The question presented is fully briefed, thoroughly argued, and ripe for decision. This Court is the only forum that can definitively resolve it and provide guidance to state legislatures and state courts across the country.” 

Experts expressed a similar concern to TPM in the immediate aftermath of the North Carolina Supreme Court’s agreeing to rehear the case: ISLT isn’t going away. And all things considered, they argued, it’s better to get that decision now than in some nightmare 2024 scenario where it comes down to one or two states and a Supreme Court decision that could crown the winner.

The positions of the other parties in Moore, as expressed Monday, can be grouped into buckets. 

The first is that the Supreme Court never had jurisdiction over this case, and continues not to have it. Lawyers for some of the respondents, represented by Democratic elections lawyer Marc Elias’ firm, took that stance — but added that if the Court really feels the need to address the ISLT, it should reject it.

“To the extent the Court is concerned that Elections Clause disputes will ‘keep arising until the Court definitively resolves’ the issue…such that it is inclined to issue a decision here, it should do so only to conclusively—and finally—reject fully the independent state legislature theory,” the lawyers wrote. 

The North Carolina League of Conservation Voters agreed, arguing that it was improper for the Supreme Court to have gotten involved at all, since proceedings were ongoing at the state court; the group specifically pointed out that the North Carolina Supreme Court had made no final determination for which congressional map should be used in future elections. 

The second stance, taken by the U.S. Department of Justice and the North Carolina Department of Justice, is that the Court does not have jurisdiction, given the actions of the North Carolina Supreme Court. 

The deputy North Carolina attorney general primarily argued that the state case is not yet finalized, so the higher court can’t intervene. (The North Carolina DOJ is headed by the Democratic Attorney General, and is at odds with the Republican-majority legislature.)

U.S. Solicitor General Elizabeth Prelogar said that it’s likely the North Carolina court will moot the central issue that the Supreme Court would be interested in deciding: whether, given ISLT arguments, state courts are allowed to enforce state law requirements on processes like redistricting. 

If the North Carolina Supreme Court reverses its prior decision and finds that, in fact, the North Carolina constitution allows partisan gerrymandering, that question of whether the state court can play a role in enforcing statutory standards ceases to exist. There’d be nothing to enforce. 

Prelogar took a notably mild tone, offering that the case is novel and unprecedented and that the Justices may disagree with the government’s take. 

“We do not believe that those arguments warrant the continued exercise of jurisdiction under the circumstances presented here,” she wrote. “But we acknowledge that no precedent squarely governs this issue, and that the Court could reasonably reach a different conclusion.”  

Now, the Supreme Court will have to decide if this is the moment it either embraces or rejects the dangerous ISLT, which could significantly undermine U.S. elections. 

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