There was a case that was debated at the Supreme Court this week that proposes a theory that is — how does one put this kindly? — totally and completely batshit crazy.
The case is Moore v. Harper.
The theory is the independent legislature theory.
Okay, let’s start with a little background. Voting is a “fundamental right” under the United States constitution, but there isn’t one clear place that spells out the right to vote. Instead, the Constitution provides for elections, and then adds a number of amendments relative to the right to vote. These include:
- The 15th amendment, which specifies that the right to vote may not be denied on account of “previou servitude”;
- The 19th amendment, which extends the right to vote to women;
- The 24th amendment, which prohibits poll taxes;
- The 26th amendment, which lowers the voting age from 21 to 18.
Various Supreme Court cases have made clear that the right to vote is fundamental, although (like any right), subject to limitations. One of the ways that that right has been diluted is through gerrymandering.
One more complication: historically, states control the “mechanics” of elections. That’s why just about every state has an officer called the Secretary of State, whose office supervises the electoral process. Of course, there are both state and federal elections, and generally speaking, the state supervises both state and federal elections, including making determinations with respect to such things as voting locations, voting hours, whether mail-in ballots are permitted, whether same-day registration is permitted, and who can vote in party primaries.
Enter the Moore v. Harper case. Long story short, the state of North Carolina gained a federal Congressional district through the 2020 census. The resulting new district maps — drawn by the Republican state legislature — were eventually struck down by the North Carolina Supreme Court because the maps violated North Carolina’s Constitution. A team of “special masters” was assigned to create a new map, which was accepted by the courts. The NC General Assembly appealed the new maps to the United States Supreme Court, based on the “independent state legislature theory.”
That theory is derived from the provision of Section 4, Article 1, which states that
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . .
Once again, historically, this has meant that the state has had the power to regulate the mechanics of elections. And the manner of regulating the mechanics is by passing state laws — subject to all the ordinary limits on passing laws — such as the veto power of the governor and the judicial review by the state courts.
Here is where it gets batshit crazy: what the proponents of ISL are suggesting is that (because the Art.1 §4 assigns the right to regulate elections to “state legislature”) the NC General Assembly (and other state legislatures) can regulate elections with no oversight or limitations by anyone else.
Thus, a highly gerrymandered legislature can gerrymander their own districts even more, as well as the federal Congressional maps, in ways that violate their state’s constitution, without anybody else being able to do anything about it.
That is batshit crazy.
As the “friend of the court” brief from Common Cause points out, the “U.S. Constitution does not grant impunity to a state legislature for violations of its state constitution simply because the legislation relates to congressional elections.”
Keep in mind that even if the ISL theory is adopted, that would not affect the regulation of state elections, which are still subject to a Governor’s veto pen and the limits imposed by that state’s constitution. No, it would just mean that when it comes to the apportionment of seats for the federal Congress, state legislatures could do whatever the bloody hell they want.
Again, if I haven’t been clear about this before, that is just batshit crazy.
If the Supreme Court adopts this theory and allows the NC General Assembly to redraw electoral maps without any limitations, it would cause all kinds of chaos in state and national elections. The Brennan Center for Justice provides an explanation of what some of those consequences would be better than I can.