The case, Moore v. Harper, is a test of the “independent state legislature” theory – the idea that the
Constitution gives state legislatures nearly unfettered authority to regulate federal elections, with little to
no interference from state courts.

Depending on whether the justices agree with the theory and how broadly they interpret it, it has
the potential to upend federal elections by eliminating virtually all oversight of those elections by
state courts.
The independent state legislature theory rests on two provisions of the Constitution. The
provision directly at issue in Moore, Article I’s elections clause, says that the “Times, Places and
Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.”
Similarly, Article II’s electors clause says that states shall appoint presidential electors for the
Electoral College “in such Manner as the Legislature thereof may direct.” Proponents of the
theory argue that, under the plain text of those two clauses, state courts are not authorized
to supervise how state legislatures run elections for Congress or the president. Critics argue
that neither clause was ever understood – including at the time of the Founding — to
confer such unchecked authority on state legislatures.
The Supreme Court has never endorsed the independent state legislature theory in a majority
opinion. But the theory made an appearance in a concurring opinion by then-Chief Justice
William Rehnquist in Bush v. Gore, the case that halted the recount in Florida in the 2000
presidential election. In an opinion joined by Justices Antonin Scalia and Clarence Thomas,
Rehnquist set out his view that the state court’s recount conflicted with the deadlines set by the
state legislature and thus violated the legislature’s authority under the Article II electors clause.
Moore began as a challenge in state court to a new congressional map adopted by North Carolina’s
Republican-controlled legislature in early November 2021. Democratic voters and non-profits
argued that the map violated the state’s constitution because it was a partisan gerrymander – that
is, drawn to favor one political party at another’s expense. Specifically, they said, although the state
is roughly divided between Democrats, Republicans, and unaffiliated voters, the new map likely
would have given Republicans 10 of the state’s 14 seats in the U.S. House of Representatives.

In February, the North Carolina Supreme Court (which had a 4-3 Democratic majority) ruled
along partisan lines that the new map violated a provision in the state constitution that guarantees
free elections. It noted that the trial court had concluded that the new map was an “egregious and
intentional” partisan gerrymander, “designed to enhance Republican performance, and thereby
give a greater voice to those voters than to any others.” The state supreme court blocked the state
from using the map in the 2022 elections and ordered the trial court to either approve or adopt a
new map before the end of the month. The trial court then adopted a new map, drawn by three
experts appointed by the court.
In their brief on the merits, the Republican legislators – led by Timothy Moore, the speaker of
the state’s house of representatives – tell the justices that the question before them can be
resolved based on the text of the Constitution. In the elections clause, they argue, the use of
the phrase “the Legislature” means that only the legislature has the power to regulate
elections, with no role for state courts.
If the drafters of the Constitution had wanted to permit other entities, the legislators continue,
such as state courts, to play a role in regulating federal elections, they could have said so – for
example, by giving power to “each State.” But, they stress, the drafters declined to use that
language, and they claim – citing a historical document known as the “Pinckney Plan” — that
“each State” was in fact how the clause was written in an early draft of the Constitution. (The
legislators’ opponents, with the backing of many historians, dismiss the Pinckney Plan as
“utterly discredited,” noting that it was added to the historical record 30 years after the
Constitutional Convention.)

The legislators maintain that their interpretation is also supported by the history of the elections
clause. During the country’s first few decades, they write, it was “virtually unheard of” for a
state court to strike down a congressional map based on a provision in the state constitution,
because the overwhelming majority of the states – 21 out of 24 – did not have any provisions that
would have allowed state courts to step in.
Defending the state supreme court’s ruling, North Carolina (which has a Democratic governor
and attorney general) criticizes the legislators’ interpretation of the elections clause as “extreme
and dangerous.” The legislature, it stresses, has “never before claimed the power that its current
leaders assert here: the power to prescribe federal-election regulations that violate the State’s
constitution and are immune from judicial review.”
North Carolina and the original challengers to the Republican map offer a different
interpretation of the text of the elections clause. Although a “legislature” is the representative
body that makes the laws, they explain, when the U.S. Constitution was drafted it was also
“universally understood” that the state legislature was created by the state constitution.
Therefore, they say, the laws that the legislature passes – including election laws – must comply
with the state constitution, and state courts can step in to enforce the limits imposed by the state
constitution.
The Supreme Court’s cases are also contrary to the legislators’ theory, North Carolina and the
challengers tell the justices, making clear that state courts had the authority to consider the
challengers’ gerrymandering claims. In its 1932 decision in Smiley v. Holm, the Supreme Court
upheld the Minnesota governor’s veto of a congressional map enacted by the state legislature.
Reversing the Minnesota Supreme Court’s holding that the elections clause gave sole power over
redistricting to the legislature, the court reasoned that even when acting under the elections
clause, a state legislature must still comply with restrictions imposed by its state constitution.

The Supreme Court echoed this principle in 2015, the state and the challengers continue,
in Arizona State Legislature v. Arizona Independent Redistricting Commission. In that case,
the court rejected a challenge to the state’s creation, through a referendum that amended its
constitution, of an independent redistricting commission. Nothing in the elections clause or the
Supreme Court’s cases, Justice Ruth Bader Ginsburg wrote, indicates that state legislatures can
regulate federal elections in ways that are contrary to the state’s constitution.
In February, the North Carolina Supreme Court (which had a 4-3 Democratic majority) ruled along partisan
lines that the new map violated a provision in the state constitution that guarantees free elections. It noted that
the trial court had concluded that the new map was an “egregious and intentional” partisan gerrymander,
“designed to enhance Republican performance, and thereby give a greater voice to those voters than to any
others.” The state supreme court blocked the state from using the map in the 2022 elections and ordered the
trial court to either approve or adopt a new map before the end of the month. The trial court then adopted a
new map, drawn by three experts appointed by the court.

In March, a divided Supreme Court turned down a request from Republican legislators to put the new court-
adopted map on hold and reinstate the legislature’s original map. In June, however, it agreed to hear oral
argument in the case. The court-adopted map was in effect for last month’s midterm elections, in which
Republicans and Democrats split the state’s congressional seats 7-7.
In their brief on the merits, the Republican legislators – led by Timothy Moore, the speaker of the state’s
house of representatives – tell the justices that the question before them can be resolved based on the text of
the Constitution. In the elections clause, they argue, the use of the phrase “the Legislature” means that only the
legislature has the power to regulate elections, with no role for state courts.
If the drafters of the Constitution had wanted to permit other entities, the legislators continue, such as state
courts, to play a role in regulating federal elections, they could have said so – for example, by giving power to
“each State.” But, they stress, the drafters declined to use that language, and they claim – citing a historical
document known as the “Pinckney Plan” — that “each State” was in fact how the clause was written in an early
draft of the Constitution. (The legislators’ opponents, with the backing of many historians, dismiss the Pinckney
Plan as “utterly discredited,” noting that it was added to the historical record 30 years after the Constitutional
Convention.)

The legislators maintain that their interpretation is also supported by the history of the elections clause. During
the country’s first few decades, they write, it was “virtually unheard of” for a state court to strike down a
congressional map based on a provision in the state constitution, because the overwhelming majority of the
states – 21 out of 24 – did not have any provisions that would have allowed state courts to step in.

Defending the state supreme court’s ruling, North Carolina (which has a Democratic governor and attorney
general) criticizes the legislators’ interpretation of the elections clause as “extreme and dangerous.” The
legislature, it stresses, has “never before claimed the power that its current leaders assert here: the power to
prescribe federal-election regulations that violate the State’s constitution and are immune from judicial review.”
North Carolina and the original challengers to the Republican map offer a different interpretation of the text
of the elections clause. Although a “legislature” is the representative body that makes the laws, they explain,
when the U.S. Constitution was drafted it was also “universally understood” that the state legislature was
created by the state constitution. Therefore, they say, the laws that the legislature passes – including election
laws – must comply with the state constitution, and state courts can step in to enforce the limits imposed by the
state constitution.

Like the legislators, North Carolina and the challengers insist that history supports their understanding of the
elections clause. In the 25 years after the Constitution was ratified, they note, virtually all of the states that
adopted or amended their constitutions directly regulated federal elections in some way.

The Supreme Court’s cases are also contrary to the legislators’ theory, North Carolina and the challengers tell
the justices, making clear that state courts had the authority to consider the challengers’ gerrymandering
claims. In its 1932 decision in Smiley v. Holm, the Supreme Court upheld the Minnesota governor’s veto of a
congressional map enacted by the state legislature. Reversing the Minnesota Supreme Court’s holding that the
elections clause gave sole power over redistricting to the legislature, the court reasoned that even when acting
under the elections clause, a state legislature must still comply with restrictions imposed by its state
constitution.
The Supreme Court echoed this principle in 2015, the state and the challengers continue, in Arizona State
Legislature v. Arizona Independent Redistricting Commission. In that case, the court rejected a challenge
to the state’s creation, through a referendum that amended its constitution, of an independent redistricting
commission. Nothing in the elections clause or the Supreme Court’s cases, Justice Ruth Bader Ginsburg wrote,
indicates that state legislatures can regulate federal elections in ways that are contrary to the state’s
constitution.

And in Rucho v. Common Cause, a 2019 challenge to an earlier version of North Carolina’s congressional
map, a divided Supreme Court ruled that federal courts cannot review claims of partisan gerrymandering. At
the same time, the state and the challengers note, the court acknowledged that state constitutional provisions
“can provide standards and guidance for state courts to apply” in partisan gerrymandering cases.

The state and the challengers add that it is “inconceivable” that anyone would have understood
the U.S. Constitution, when it was drafted, to bar state legislatures from giving state courts the
power to enforce state constitutions. And that is precisely what the North Carolina legislature has
done here, the state and challengers contend. Laws enacted by the legislature outline a scheme to
govern challenges to redistricting maps; that scheme gives state courts the power to review
congressional maps to make sure that they comply with the state constitution – and, if necessary,
to provide a remedy for the state constitutional violation.
The legislators counter that even if a legislature generally could delegate power to regulate
congressional elections to state courts, the North Carolina legislature did not do so here. As an
initial matter, they assert, no legislature can delegate the kind of power at issue in this case –
deciding how strong a role partisanship can play in redistricting, which is an “unmoored policy
determination.” But in any event, they say, the state-law provisions on which the challengers and
the state rely do not delegate power to the state court.
Finally, North Carolina and the challengers caution that a ruling for the legislators would “wreak
havoc on election administration nationwide.” Elections are complicated to organize and run,
they stress, and as a result states – like North Carolina – delegate the authority to set rules for
federal elections to election officials. But if the legislators prevail, they suggest, the legislature
would have to make all election rules, on topics ranging from the location of polling places to
polling hours in an emergency. The legislature’s theory also raises the possibility that, if a state
court invalidates an election law as a violation of the state constitution, that decision would apply
only to state elections, but not to federal elections. As a result, North Carolina and the
challengers posit, election officials may conclude that their only choice is to conduct two
separate elections using the two different sets of rules.
Wednesday’s argument comes less than one month after the midterm elections changed the
political landscape in North Carolina. While Democrats made gains in the state’s congressional
delegation, Republicans now control a majority on the North Carolina Supreme Court,
creating the possibility that – regardless of the outcome of the case – the state supreme court
would green-light a map drawn to favor Republicans
And although it is the Republican-controlled legislature asking the Supreme Court to recognize a
theory of near-complete power for state legislatures over federal elections, Princeton University
professor Sam Wang suggests that a ruling for the legislature in this case would likely benefit
Democrats more. Blue and swing states, Wang explains, have been more likely to check partisan
gerrymandering through a governor’s veto, the state courts, or independent redistricting
commissions. A decision in favor of the legislature, Wang says, would allow those blue and
swing states to draw new maps that are more favorable to Democrats. The 19 states where
Republicans already control redistricting have less to gain from the Supreme Court’s ruling,
Wang concludes, because those states have already drawn maps to benefit Republicans.