Of all the potentially important cases in the term on the Supreme Court’s docket, the one that scares me the most is Moore v. Harper. It would not be an exaggeration to say that this decision could determine the future of American democracy.
Scheduled for argument next month, Moore v. Harper deals with the ability of state courts to apply state constitutions and state laws to elections. The case stems from the partisan gerrymandering of congressional districts in North Carolina, a purple state that went to Obama in 2008 and to Republican presidential candidates since then, but always by narrow margins. Donald Trump carried the state by 1.3 percentage points in 2020.
The state redrawn congressional districts after Republicans gained control of the North Carolina legislature in the middle of the previous decade. Leaders of the effort said their goal was to give Republicans control of 10 of the state’s 13 congressional seats.
A computer pulled up 3,000 possible maps, and Republicans chose the one most likely to benefit their party. It was successful: In 2018, Republican and Democratic candidates for Congress received an equal number of votes in the state, but Republicans won 10 of the 13 races.
A challenge to the redistricting went to the US Supreme Court, but the justices ruled in a 5-4 decision in 2019 that federal courts cannot hear challenges to partisan gerrymandering. The court found that such cases are political questions that cannot be adjudicated by the federal judiciary. The judges explicitly left it to the state courts to determine whether partisan maneuvering violates the state constitution.
After the 2020 census, North Carolina and other states redrawn their electoral districts. The state now had 14 congressional seats, and the legislature drew districts so that Republicans could win 10 or 11 of them. The North Carolina Supreme Court found that in violation of the state constitution and appointed a commission to redrawn the districts.
The legislature and its supporters appealed to the US Supreme Court, arguing that the North Carolina Supreme Court had no legal authority to get involved—that the state legislature had the final, immutable word. The Appellants based their argument on the provision of Clause 4 of Article I of the US Constitution, which states that the legislature of each state shall determine the time, place, and manner of elections to Congress. The “independent state legislature doctrine” literally means that the legislature’s decisions regarding 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 compliance with the law. Article I of the Constitution grants Congress several powers, but the courts always decide whether an act of Congress violates the Constitution.
If the Supreme Court were to accept the doctrine of independent state legislature, it appears that no court could ever review laws regulating elections to Congress, no matter how unconstitutional. This would mean, for example, that no court could review partisan manipulation, no matter how extreme.
But the implications of the free state legislature doctrine go beyond this. Another provision of the Constitution, in Article II Section 1, gives legislatures the power to allocate presidential electors to each state, which can have serious implications for the next election.
Imagine if the 2024 presidential election was as close as the 2020 election. Imagine that the Democratic nominee wins the popular vote in states with Republican legislatures, as happened in several states two years ago. Imagine that many of these legislatures still cast their electoral votes to the Republican candidate, despite state law that requires the winner of the popular vote to receive an electoral vote. Donald Trump and his supporters urged several state legislatures to do the exact same thing in 2020, though ultimately none did.
If the court accepts the independent state legislature doctrine, it could give states the right to do so in 2024. If some states also do so, it can decide the presidential election. I do not believe that American democracy will survive. The secession movements gaining momentum in many states may lead to separation of the country.
Judicial review of legislative acts has been a central feature of American government since the Marbury v. Madison decision in 1803. I hope the Supreme Court will protect judicial power and see the enormous danger this principle poses to democracy. But I am very worried.
Irwin Chemerinsky is Dean and Professor at UC Berkeley School of Law.