Of all the potentially momentous cases on the Supreme Court’s docket this term, the one that frightens me most is Moore v. Harper. It is not hyperbole to say that the future of American democracy could be determined by this decision.
Scheduled for argument next month, Moore v. Harper concerns the ability of state courts to enforce state constitutions and state laws in elections. The case arises from partisan gerrymandering of congressional districts in North Carolina, a purple state that went for Obama in 2008 and for Republican presidential candidates since then, but always by narrow margins. Donald Trump carried the state by 1.3 percentage points in 2020.
After Republicans gained control of the North Carolina legislature in the middle of the last decade, they redrew congressional districts in the state. Leaders of the effort said their goal was to give Republicans control of 10 of the state’s 13 congressional seats.
A computer drew 3,000 possible maps, and Republicans chose the one most likely to benefit their party. It succeeded: In 2018, Republican and Democratic candidates for Congress got similar numbers of votes in the state, but Republicans won 10 of 13 races.
A challenge to the redistricting went to the U.S. Supreme Court, but the justices, in a 5-4 decision in 2019, held that federal courts may not hear challenges to partisan gerrymandering. The court found that such cases are political questions that may not be adjudicated by the federal judiciary. The justices expressly left it to state courts to find whether partisan gerrymandering violates state constitutions.
After the 2020 census, North Carolina and other states redrew their election districts. There are now 14 congressional seats in the state, and the legislature drew the districts so that Republicans would be likely to win 10 or 11 of them. The North Carolina Supreme Court found that in violation of the state constitution and appointed a commission to redraw the districts.
The legislature and its supporters appealed to the U.S. Supreme Court, contending that the North Carolina Supreme Court had no legal authority to get involved — that the state legislature had the last, unreviewable word. The appellants based their argument on a provision of Section 4 of Article I of the U.S. Constitution, which says that the legislature of each state shall determine the time, place and manner of congressional elections. The “independent state legislature theory” interprets this literally to mean that a legislature’s decisions about elections are not subject to court review.
There are many problems with this theory. It has always been understood that courts can review legislative actions to ensure their compliance with the law. Article I of the Constitution grants Congress many powers, but the courts always get to decide whether an act of Congress violates the Constitution.
If the Supreme Court were to accept the independent state legislature theory, it would seem that no court could ever review laws regulating elections for Congress, no matter how egregiously unconstitutional. It would mean, for example, that no court could review partisan gerrymandering, no matter how extreme.
But the implications of the independent state legislature theory go beyond that. There is another provision of the Constitution, in Section 1 of Article II, that gives legislatures the power to allocate each state’s presidential electors, which could have serious implications for the next election.
Imagine if the 2024 presidential election is as close as the 2020 election. Imagine if the Democratic candidate wins the popular vote in states with Republican legislatures, as happened in several states two years ago. Imagine if several of these legislatures nevertheless award their electoral votes to the Republican candidate, notwithstanding a state law that requires the winner of the popular vote to receive the electoral votes. Donald Trump and his supporters urged several state legislatures to do exactly that in 2020, though none ultimately did.
If the court accepts the independent state legislature theory, it could empower states to do that in 2024. If even a few states do, it could decide the presidential election. I do not believe American democracy would survive that. The country could come apart, with secession movements taking hold in many states.
Judicial review of legislative acts has been a central feature of American government since Marbury v. Madison was decided in 1803. I hope the Supreme Court will protect judicial power and see the enormous threat this theory poses to democracy. But I am very worried.
Erwin Chemerinsky is the dean and a professor at the UC Berkeley School of Law.