In June 2023, the Supreme Court determined that states do not have independent and exclusive authority when it comes to federal election rules. By the time they issued the majority opinion, it no longer mattered in the state that started it all.
So what happened in Moore v Harper? What is (or was) the Independent State Legislature Theory, and what other powers did the court vest in itself in this opinion?
Carolyn Shapiro, founder and co-director of Chicago-Kent's Institute on the Supreme Court of the United States, is our guide.
Transcript
Hannah McCarthy: [00:00:01] You're listening to Civics 101. I'm Hannah McCarthy.
Nick Capodice: [00:00:04] I'm Nick Capodice.
Archival: [00:00:08] We'll hear argument this morning in case 21 1271 Moore versus Harper. Mr. Thompson.
Archival: [00:00:14] Mr. Chief Justice. And may it please the Court.
Hannah McCarthy: [00:00:21] Nick, a recent Supreme Court case and by recent in case you are listening in the future, I mean, June 20th, 23 had a lot of people [00:00:30] holding their breath because if the court ruled in a certain way, it would mean affirming a pretty radical theory about the Constitution.
Nick Capodice: [00:00:41] A theory?
Hannah McCarthy: [00:00:43] Which, you know, it's in the name is just an unproven idea.
Nick Capodice: [00:00:47] Science. We're scientists.
Hannah McCarthy: [00:00:49] We are scientists! Unproven until the Supreme Court says otherwise.
Archival: [00:00:55] Justice Kagan.
Archival: [00:00:56] If I could, Mr. Thompson I'd like to step back a bit and just, you [00:01:00] know, think about consequences, because this is a theory with big consequences.
Nick Capodice: [00:01:04] Well, what is this theory exactly?
Hannah McCarthy: [00:01:09] It has to do with a certain interpretation of the elections clause in the Constitution. Let's bring in our expert here. This is Carolyn Shapiro.
Carolyn Shapiro: [00:01:19] I'm a law professor at Chicago-Kent College of Law. I teach constitutional law, among other things. And I am also the founder and co-director [00:01:30] of Chicago-Kent's Institute on the Supreme Court of the United States. And I also am the faculty director of a civic education project called the Constitutional Democracy Project. Yeah. I should also add that I filed an amicus brief. I always sometimes forget to say that, but I know it's important for journalists to know that.
Nick Capodice: [00:01:52] Carolyn filed an amicus brief for this case?
Hannah McCarthy: [00:01:55] Yep, she worked on one alongside two other constitutional law professors.
Nick Capodice: [00:01:59] And we should [00:02:00] remind our listeners, an amicus brief is otherwise known as a friend of the court brief. So lawyers, historians, civil rights organizations, all sorts of people and groups can come together to send the court what is basically a term paper arguing for implications of Supreme Court cases, like what they're worried about, what they hope to happen. Et cetera.
Hannah McCarthy: [00:02:22] Right. So the reason that Carolyn needed me to know that as a journalist, if you have filed an amicus [00:02:30] brief in a case, you've chosen a side before the case is even heard by the court, and this was Carolyn side.
Carolyn Shapiro: [00:02:39] Well, so the brief was really focused on some of the implications that would flow from a ruling in favor of the independent state legislature theory, some of the ways in which it would disrupt the way elections operate, the way people, elections, officials, legislatures, everybody [00:03:00] has assumed that they operate for really hundreds of years. It was very much a focus on the potential negative consequences of endorsing the independent state legislature theory.
Nick Capodice: [00:03:15] Independent state legislature theory. So I'm going to assume that this is the theory you're talking about. That's at the center of the Moore v Harper case.
Hannah McCarthy: [00:03:23] It is.
Nick Capodice: [00:03:25] Now, I've not heard of this. So what does it actually mean?
Carolyn Shapiro: [00:03:28] The independent state legislature theory [00:03:30] says, well, if you look at the federal constitution, it says that the state legislature shall determine the time, place and manner of congressional elections, although Congress can override that. And because the federal Constitution expressly uses the term legislature, it means that the legislature of the state can't be limited in any way by the state constitution, can't really be checked by the state [00:04:00] judiciary, that the normal checks and balances that apply to things that state legislatures do don't apply. So that was the issue that went to the US Supreme Court.
Hannah McCarthy: [00:04:11] Now, okay, we'll get into what the court has to say about that argument, but here is why it was being made. We talk about redistricting a lot.
Nick Capodice: [00:04:21] Yeah, we do, because it's a big deal.
Hannah McCarthy: [00:04:23] Sure is. Every ten years, either the state legislature or an independent commission redraws [00:04:30] election district lines based on the census on population size. So the idea there is, given the limited number of members of Congress.
Nick Capodice: [00:04:40] 435.
Hannah McCarthy: [00:04:41] Right, 435 it wouldn't be fair if districts were drawn in such a way that a city of a million people was represented by the same number of legislators as a town of 20,000.
Nick Capodice: [00:04:55] Right? That would be called malapportionment.
Hannah McCarthy: [00:04:57] It would. And then there's something [00:05:00] else that can happen.
Nick Capodice: [00:05:01] Everyone's thinking it, Hannah. I'm just saying it. Gerrymandering.
Hannah McCarthy: [00:05:05] Go ahead and listen to our episode on that to learn more. But the idea there is that district lines are drawn to favor one party over another. And this practice, gerrymandering, it's not really something that a legislative body usually admits to.
Hannah McCarthy: [00:05:22] Except this time they 100% did.
David Lewis: [00:05:31] We [00:05:30] want to make clear that. We to the extent are going to use political data in drawing this map. It is to gain partizan advantage on the map. I want that criteria to be clearly stated and understood.
Nick Capodice: [00:05:50] Wait, hang on. Who's that?
Hannah McCarthy: [00:05:51] That is Representative David Lewis, a Republican from North Carolina.
Nick Capodice: [00:05:55] And he just said explicitly that they were going to use political data to gain [00:06:00] partizan advantage.
Hannah McCarthy: [00:06:01] He did.
Nick Capodice: [00:06:02] So they were just pretty upfront about it, saying the quiet part out loud.
Hannah McCarthy: [00:06:06] They were entirely upfront about it, which I mean, the reason this is really interesting is that for the longest time gerrymandering has been happening with this sort of, you know, Oh yeah, look at that. How did that happen? Feigned naivete. And at least in this case, they were like, Yeah, no, we are definitely going to draw the districts to favor the Republican [00:06:30] Party and draw the districts like that. They did.
Carolyn Shapiro: [00:06:38] Republicans have an overwhelming majority in the legislature right now. They have a supermajority in the legislature. And this was challenged in the North Carolina courts as violating the North Carolina constitution. And the North Carolina Supreme Court said that it did. They said that [00:07:00] the North Carolina Constitution's guarantee of free and fair elections, the North Carolina Constitution's guarantee of free association and other provisions meant that this kind of extreme partizan gerrymander was unconstitutional. The leaders of the legislature went to the US Supreme Court. Normally, when a state Supreme Court says this is what our state constitution means, the discussion is over. The federal [00:07:30] courts have nothing to say about that. But the independent state legislature theory proposes that that's not the case in the context of redistricting.
Nick Capodice: [00:07:41] All right. Let me see if I've got this right. The case was taken to the Supreme Court to settle this question of independent state legislature theory, which basically says that checks and balances when it comes to the legislature and elections like the state Supreme Court saying your gerrymander is unconstitutional, those don't apply [00:08:00] because the US Constitution says that states can determine the time, place and manner of elections full stop, and.
Hannah McCarthy: [00:08:07] That state legislatures do not have to allow the state Supreme Court to review their election changes. And just to give you an idea of what that would have actually meant if the court had upheld this specific interpretation of the independent state legislature. Here's Justice Kagan during the oral arguments.
Speaker5: [00:08:28] It would say [00:08:30] that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that. Even if the courts think that that's a violation of the Constitution, it would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits. It might allow the legislatures to [00:09:00] insert themselves to give themselves a role in the certification of elections and and and and the way election results are calculated.
Nick Capodice: [00:09:12] Okay. Hannah, you said that if the court had upheld it, which must mean that they didn't.
Carolyn Shapiro: [00:09:18] Right. The Supreme Court said no. The Supreme Court said, look, a legislature is a creature of a state constitution. And when the federal [00:09:30] Constitution was written and ratified, it was well established that state constitutions could limit what legislatures do and that state courts engaged in what we call judicial review to determine if what state legislatures were doing was consistent with the state constitution. Everybody understood that at the time the federal Constitution was was written and ratified. And so that's what it means. So the Supreme Court rejected the independent state [00:10:00] legislature theory, or at least it rejected the most extreme form of the independent state legislature theory, which was to set state legislatures completely free of the normal limitations imposed by state constitutions.
Hannah McCarthy: [00:10:19] It was a 6 to 3 decision with Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissenting. And we're going to get into that dissent after the break.
Nick Capodice: [00:10:27] But before we do, a friendly little [00:10:30] reminder that Civics 101 is public radio. Free to you. Always has been, always will be. It is yours. Please take it. And while you will hear ads on the show from time to time, because we got to find other ways to keep the lights on, our most significant and reliable source of support is you, our listeners.
Hannah McCarthy: [00:10:48] That's right. Believe you me, we definitely could not exist without listener support. Like, poof, we'd be gone.
Nick Capodice: [00:10:55] So if you're in a position to do so, do consider keeping us around. My friends. [00:11:00] You can make a contribution to the show by going to Civics101podcast.org and clicking on the donate button every little bit. Genuinely, seriously. I mean, it majorly helps. We're back. You're listening to Civics 101 and Hannah, just before the break, you mentioned that Moore V Harper was a 6-3 decision with a dissent worth talking about. So can I just ask, what was [00:11:30] the nature of the dissent? If the court determined that state legislatures do not have independent power over federal elections? Did the three dissenting justices argue that states do have that power?
Hannah McCarthy: [00:11:43] No, they didn't go that far. Actually, the dissent is interesting because of what happened in North Carolina before this case was heard by the court.
Archival: [00:11:52] The state Supreme Court just released three key decisions. The court's Republican majority is reinstating the state's voter ID law that [00:12:00] passed in 2018. They've also overturned a previous decision related to Partizan gerrymandering. In that case, when the court had a Democratic majority, they found Republicans had illegally drawn electoral districts to benefit their party. The third decision would end voting rights for convicted felons.
Hannah McCarthy: [00:12:16] So in the dissent, Clarence Thomas, who wrote it, basically says that the court shouldn't have heard this case at all because it's a moot point. He argues that because the North Carolina Supreme Court reversed its decision [00:12:30] and said that the legislature can, in fact, gerrymander their maps, it doesn't matter what the court has to say on the independent state legislature theory.
Nick Capodice: [00:12:39] So the North Carolina court said partisan congressional redistricting is okay.
Hannah McCarthy: [00:12:46] They did. And I should be clear, the Supreme Court has ruled on a number of cases related to congressional redistricting, but it has not said cut and dry that partizan maps are unconstitutional. [00:13:00] Okay. One last thing about the decision itself. As you might know, Nick, the Supreme Court has a tendency to go above and beyond when it writes its opinions. Like it might make a ruling on a case and then throw in a, oh, by the way, here's this other thing that's true.
Nick Capodice: [00:13:21] Absolutely. My favorite example of this being Marbury v Madison, when the Supreme Court said, oh, and by the way, while we're at it, we [00:13:30] are the final arbiters of constitutionality in this fair nation. We're the ones who say what the supreme law of the land actually says and how and where it applies.
Hannah McCarthy: [00:13:40] Bingo. So in Moore V Harper, the court added this little lagniappe.
Carolyn Shapiro: [00:13:45] But the Supreme Court said is that if a state court just goes really so far off the rails that it is maybe taking unto itself the role of the legislature in some way or somehow not acting as a [00:14:00] court that the Supreme Court could step in. What exactly that means and how broad that loophole is, nobody really knows for sure. It should be, in my view, a very narrow set of circumstances where the Supreme Court would say, wait a minute, this state court has just completely gone off the rails. But that would have to be in a situation [00:14:30] where what the state court did just can't be reconciled with what courts do generally, which is different from a situation where there might be a difference of opinion about the right answer among judges and jurists, where there's a disagreement about the right answer. But there are maybe majority opinion and dissenting opinion that should not give rise to the kind of triggering this this particular [00:15:00] form of oversight.
Nick Capodice: [00:15:01] All right, Hannah, I am honestly not sure what that means.
Hannah McCarthy: [00:15:04] What this means is in this case, the United States Supreme Court affirmed that the North Carolina Supreme Court could review legislative changes to elections and could deem those changes unconstitutional because state legislatures do not have absolute independent uncheckable power over federal election rules. However, if in the future, a state Supreme Court does something that [00:15:30] the federal Supreme Court deems a major overstep. Well, the United States Supreme Court has asserted that it can intervene.
Carolyn Shapiro: [00:15:39] We don't know for sure how broadly the Supreme Court is going to use that power. The language that it used in the opinion suggests that it's going to be a very rarely, if ever, invoked authority. It uses language like beyond the bounds of ordinary judicial review, which suggests [00:16:00] to me something that's just completely non-judicial.
Hannah McCarthy: [00:16:04] Ordinary judicial review, by the way, being a very necessary check that the judiciary plays on the legislative and executive branches of the government. Basically, a court can invalidate the action of another branch of the government if it determines that the action is unconstitutional or against the law in some way. And Carolyn is saying that the Supreme Court is unlikely to intervene in that judicial review [00:16:30] unless a state court, for example, seems to be doing something like she said, that is non-judicial, not within their power.
Carolyn Shapiro: [00:16:38] But we won't know for sure until we see what happens. And the the danger is that in the middle of an election, when these issues sometimes arise, when emotions are running very high, when things have to be decided very quickly. And when we know who's [00:17:00] going to benefit from the particular ruling in one direction or another, the danger is that the court might or some of the justices might see it as their role to step in if they just disagree with what a state court did.
Hannah McCarthy: [00:17:15] Again, Carolyn doesn't see this as likely to happen, but we honestly don't know. And she says it wasn't really until 2020 that courts exercising review over election rules became something that people questioned the constitutionality [00:17:30] of. One example she cited was when the Pennsylvania Supreme Court moved the date by which mail in ballots had to be received, and some argued that in doing so, they were taking power away from the Pennsylvania state legislature.
Carolyn Shapiro: [00:17:44] Since the beginning of the Republic, states have had constitutional provisions that limit what legislatures can do when it comes to federal elections. And nobody's ever thought that that was unconstitutional until this [00:18:00] argument bubbled up during the 2020 election. It's also important to say that what the Pennsylvania Supreme Court did was not particularly unusual. It was exercising what's known as equitable power. It was exercising power that allows it to remedy a situation under particular circumstances and is consistent with things the Pennsylvania courts have done in other contexts. With elections, for example, if there's some kind of natural disaster that [00:18:30] requires Election Day to be halted or moved or extended in some way. Those are those are equitable powers that the courts have and that the Pennsylvania Supreme Court wasn't doing anything particularly unusual. What made it what made it controversial in 2020 was that mail in ballots were controversial, but not because what the court was doing was so unusual.
Nick Capodice: [00:18:59] Or so Hannah, does [00:19:00] Carolyn think we're going to see questions like this keep coming up. She mentioned emotions running high around election season. And certainly in the last federal election, we did see some high emotions and some serious challenges to the results of the election. Does she think the court is going to have to keep answering questions about election rules?
Hannah McCarthy: [00:19:20] Oh, she sure does.
Carolyn Shapiro: [00:19:28] The issues that might arise if [00:19:30] there are arguments about how to interpret a particular statute or whether a broad reading of a state constitution invalidates some other some part of another statute. Those arguments will persist. I think it's more likely that we will see those types of arguments brought by campaigns and parties as opposed to by legislatures or legislators. But it's impossible to know for sure. The reason [00:20:00] campaigns and parties are more likely to bring those claims is because when there's a dispute about how a particular election law should be interpreted or whether a particular election law is constitutional, under the state constitution, there's going to be one side, usually one candidate or one party that thinks it's to their advantage for that argument to come out a particular way. That's very often how these types of cases end [00:20:30] up getting litigated. So a disappointed candidate is going to have every incentive to argue that the state courts have gone beyond the bounds set for them in Moore versus Harper.
Nick Capodice: [00:20:44] So now that the Supreme Court has said that there are bounds to what a state court can do, we may very well see candidates saying, hey, look, they crossed those bounds. Supreme Court justices, please intervene.
Hannah McCarthy: [00:20:59] One [00:21:00] could argue that giving yourself judicial superpowers is a double-edged sword.
Nick Capodice: [00:21:04] You know, my judicial superpower would probably be invisibility.
Hannah McCarthy: [00:21:07] I also always go with invisibility. We are journalists, though, and we should probably make note of the fact that the Supreme Court does not have the ability to turn invisible.
Nick Capodice: [00:21:17] To our knowledge.
Hannah McCarthy: [00:21:18] To our knowledge. This episode was produced by me. Hannah McCarthy with Nick Capodice. Christina [00:21:30] Phillips is our senior producer. Rebecca Lavoie is our executive producer and music in this episode by Ferrell Wooten, Vivy Campos, El Flaco Collective, Nihoni and Ryan James Carr. New to Civics 101? Welcome. We love you. Not new, but here because you're already a fan. Welcome back. We love you. Either way, if you don't subscribe to our newsletter, are you even a Civics 101-er you can do that right now? It's genuinely fun and it will never spam your inbox and it will be the thing you actually look forward to opening. I promise. One [00:22:00] time I didn't know what to write, so I just wrote about Harriet the Spy, but in a civics way, it's that kind of thing. Subscribe at civics101podcast.org and while you're there you can find everything else we have ever made. Civics 101 is a production of NHPR, New Hampshire Public Radio.