Moore v. Harper
On October 26, 2022 Law Forward filed an amicus (friend-of-the-court) brief with the U.S. Supreme Court in Moore v. Harper—one of the most important democracy cases before the bench this term.
Moore v. Harper is a case from North Carolina, where voters claimed that the new congressional district maps created a partisan gerrymander that benefited Republicans. The voters argued that the new maps would give Republicans likely control of up to 10 of 14 congressional districts in a state that is evenly divided between the two major political parties. The State Supreme Court agreed, striking down the congressional maps as violating the North Carolina State Constitution.
Redistricting, while an important issue here, is not the heart of the case. The real danger to democracy here lies in the argument those defending North Carolina’s gerrymandered maps are making. They argue that under a legal idea they are calling the “Independent State Legislature Theory,” that the state court can’t use North Carolina’s own constitution to evaluate and strike down the maps. Under this radical reading of the law, only the State Legislature can regulate congressional elections, and can do so without regard to the normal limitations imposed on them by their own state constitutions. Proponents of this idea are arguing that state courts can’t enforce state constitutional protections for voting and fairness.
Law Forward weighed in to explain what adopting this legal idea would mean for Wisconsin. In short, it would open a pandora’s box that could make our elections impossible to administer by creating different rules—maybe even different ballots—for federal elections and other state or local elections. Wisconsin’s approximately 1,500 municipal clerks would have to implement these differing rules, essentially running two separate elections every time state and congressional races are voted on at the same time. If the Court rules against North Carolina voters, adopting the extreme “Independent State Legislature Theory,” it could interfere with state election laws here and across the country.
Three former plaintiffs from Whitford v. Gill (Wisconsin’s challenge to partisan gerrymandering in federal court in 2017) joined us in filing this brief and reminding the Court of the importance of state-level protections against partisan gerrymandering. After the U.S. Supreme Court’s decision in Rucho v. Common Cause, only state courts and state law can currently guard against that gerrymandering. This new case has the potential to undercut voters’ ability to ask a state court to outlaw partisan gerrymandering.
If you’re looking for a deeper dive on ISLT and its impact beyond Wisconsin, you can listen to this podcast from Strict Scrutiny featuring Jamelle Bouie, or read this explainer from the Brennan Center for Justice.
Oral arguments in Moore v. Harper were held on December 7, and on June 27 the court issued a 6-3 decision rejecting ISL.
October 26, 2022
Amicus Brief filed in U.S. Supreme Court
June 27, 2023
The Supreme Court rejected the extreme rightwing theory of an independent state legislature and affirmed that state courts are the proper arbiters of state law. This is good news for our democracy, it means questions arising under state constitutions –including whether or not an extreme partisan gerrymander violates the state constitution– should be decided by state courts.
Amicus Brief, Good Governance
U.S. Supreme Court