Craig W. Hardie*
The North Carolina Supreme Court recently struck down not one, but two congressional district maps put forth by North Carolina’s General Assembly.[1] In response to blatant gerrymandering by the state legislature, the North Carolina Supreme Court appointed a special master to craft fairer maps.[2] This manner of redistricting created substantial questions regarding Article I, Section 4, Clause 1 of the Constitution, which is colloquially known as the Elections Clause. Those questions are presently being litigated before the United States Supreme Court in the case of Moore v. Harper.[3]
What is the Independent State Legislature Doctrine?
Petitioners in Moore are basing their argument, in part, on the fringe election law doctrine known as the Independent State Legislature Doctrine (ISL).[4] The doctrine is, at its core, a misreading of Article I, Section 4, Clause 1of the Constitution (Elections Clause), which reads, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except to the Places of chusing Senators.”[5]
Proponents of the doctrine hold a narrow, literal interpretation of the word “legislature”—interpreting it to mean the state’s elected lawmakers.[6] This interpretation excludes other state actors who are involved in administering elections—executive branch officials, judicial officers, or other pseudo-legislative bodies that often undertake “legislative” functions. The intended result of this interpretation is to securely grant electoral oversight to the state legislature and no one else, meaning state courts would have no ability to review electoral decisions made by the elected state lawmakers.[7]
The ISL theory offers an opportunity for high-level constitutional interpretation. But if it were to be adopted by the Supreme Court, the path would be cleared for rampant, unchecked partisan gerrymandering at the state level—effectively diluting certain voters’ power.[8] This blog seeks to succinctly explain the crux of the issue in Moore and identify the theoretical and practical flaws in the ISL theory.
How is the ISL Implicated in Moore?
It is useful to begin by examining what the state supreme court decided in Moore. The North Carolina Supreme Court found that the state legislature “subordinated traditional neutral redistricting criteria in favor of extreme partisan advantage by diluting the power of certain people’s votes.”[9] In addition, because of the litigation which stemmed from North Carolina’s redistricting, the state supreme court appointed a special master to draw fairer district maps, which were used in the 2022 election cycle.[10] The United States Supreme Court granted review upon the request of Petitioners following the state supreme court’s decision, and the eventual outcome is sure to affect the future of the ISL theory in practice.[11] The issue before the Supreme Court, in few words, is whether state courts can strike down a legislature’s gerrymandered district maps because they violate state constitutional law.[12] The answer seems obvious.
However, as alluded to above, the ISL theory attempts to preclude state courts from reviewing a state legislature’s redistricting plans because the Constitution grants the legislature authority when it comes to redistricting.[13] Because the decision in Moore requires the Supreme Court to answer many of these questions, ISL proponents and detractors have a stake in the Moore outcome. This is evidenced by the numerous amici curiae briefs submitted by election law scholars, grassroots organizations, and many others in the briefing period for Moore.[14]
Support for the ISL on the Supreme Court Bench
Another reason why Moore is a crucial case on the Supreme Court’s docket is because several Supreme Court justices have indicated varying levels of support for the ISL theory. Following the state supreme court decision, Petitioners applied for a stay pending the filing and disposition of a petition for a writ of certiorari to the United States Supreme Court, which was denied.[15] However, Justice Alito submitted a dissenting opinion and was joined by Justices Thomas and Gorsuch.[16] In the dissent, Justice Alito questioned the North Carolina Supreme Court’s interpretation of its own state constitution by writing, “[o]nly this year did the State Supreme Court change course and discern in the State Constitution a judicially enforceable prohibition of partisan gerrymandering.”[17] Alito’s dissent does not state that there are no circumstances where a state court can review a state legislature’s redistricting plans, but instead states that those circumstances are limited.[18] Nevertheless, Alito, Gorsuch, and Thomas tipped their hand, and it is fair to assume that their decision in Moore will align with what was stated in the dissenting opinion referenced above. It remains to be seen if this reasoning will hold any water and if other Supreme Court justices will be persuaded.
Why the ISL is Flawed
The ISL is flawed from a theoretical and practical perspective. In theory, the ISL could allow state legislatures to circumvent their own state constitutions in drawing congressional district maps because the authority to regulate federal elections is given to legislatures by the federal Constitution.[19] The state legislatures’ actions would not be subject to state review, but rather, federal review.[20] As a side effect, questions of election law administration would be transformed from questions of state law to questions of federal law, which could foreseeably make every state gerrymandering dispute a federal constitutional case. This leads to further issues with the political question doctrine, which presently strips federal courts of jurisdiction over legal questions which are political in nature.[21] As you can see, there are barriers to overcome before the Supreme Court could adopt the ISL theory in full or in part.
From a practical perspective, the ISL theory would certainly disrupt long-standing election law practices such as state court review and election administration.[22] The ISL theory would surely send more election law cases to federal court as a byproduct of precluding state court review.[23] Regulation of federal elections has historically been within the purview of state legislatures and state courts—not federal courts. The ISL theory would surely disrupt long-standing state election practices and burden federal courts with interpreting and applying state election law.[24] In practicality, this does not make much sense.
If the ISL theory is adopted, in full or in part, by the Supreme Court in Moore, the future of redistricting will be substantially changed, as well as the judiciary’s ability to correct constitutional wrongs. There are likely too many barriers which would prevent the Supreme Court from accepting the ISL theory, but it remains to be seen exactly how the Supreme Court will answer the daunting questions presented above.
* Craig W. Hardie, J.D. Candidate, University of St. Thomas School of Law Class of 2023, Senior Editor.
[1] See Eliza Sweren-Becker & Ethan Herenstein, Moore v. Harper, Explained, Brennan Ctr. For Justice (Oct. 26, 2022), https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained.
[2] Id.
[3] Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21-1271).
[4] See Brief for Petitioners at 1, Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21-1271).
[5] U.S. Const., art. I, § 4, cl. 1.
[6] See Ethan Herenstein & Thomas Wolf, The ‘Independent State Legislature Theory,’ Explained, Brennan Ctr. For Justice (June 30, 2022), https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained.
[7] See Mac Brower, The Constitutional Law Theory That Could Upend American Elections, Democracy Docket (Mar. 29, 2022), https://www.democracydocket.com/analysis/the-constitutional-law-theory-that-could-upend-american-elections/.
[8] See Julia Kirschenbaum & Michael Li, Gerrymandering Explained, Brennan Ctr. For Justice (Aug. 12, 2021), https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained.
[9] Harper v. Hall, 868 S.E.2d 499, 509 (N.C. 2022).
[10] Sweren-Becker & Herenstein, supra note 1.
[11] See Herenstein & Wolf, supra note 6.
[12] Harper, 868 S.E.2d at 508–09.
[13] See Vikram David Amar, (Yet) Another Reason ISL Theory is Wrong About the Meaning of the Term State “Legislature”: The Constitution’s References to the Federal Counterpart— “Congress”, Justia: Verdict (June 30, 2022), https://verdict.justia.com/2022/06/30/yet-another-reason-isl-theory-is-wrong-about-the-meaning-of-the-term-state-legislature-the-constitutions-references-to-the-federal-counterpart-congress.
[14] See Thomas Wolf, Clara Fong & Ethan Herenstein, Annotated Guide to the Amicus Briefs in Moore v. Harper, Brennan Ctr. For Justice (Nov. 8, 2022), https://www.brennancenter.org/our-work/court-cases/annotated-guide-amicus-briefs-moore-v-harper.
[15] Order Den. App. for Stay at *1, Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21A455).
[16] Id. (Alito, J., dissenting).
[17] See id. at *2 (Alito, J., dissenting).
[18] See id.
[19] Hansi Lo Wang, How the Supreme Court Could Radically Reshape Elections for President and Congress, NPRNews (June 30, 2022), https://www.npr.org/2022/06/30/1107648753/supreme-court-north-carolina-redistricting-independent-state-legislature-theory.
[20] Richard Briffault, Five Questions on the Independent State Legislature Theory for Expert Richard Briffault, Columbia L. Sch. (Nov. 16, 2022), https://www.law.columbia.edu/news/archive/five-questions-independent-state-legislature-theory-elections-expert-richard-briffault.
[21] See Baker v. Carr, 369 U.S. 186, 209 (1962).
[22] Brief for Carolyn Shapiro, Nicholas O. Stephanopoulos, and Daniel P. Tokaji as Amici Curiae Supporting Respondents, Moore v. Harper, at 13 (Oct. 26, 2022) (No. 21-1271).
[23] Id. at 3.
[24] See id. at 23.
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