The Week Ahead

December 4, 2022

Last week we focused on the Supreme Court in the week ahead, and then a whole lot of other things happened. But we’re back for another week ahead focused on the Court because this week, on Wednesday, December 7, the Supreme Court will hear oral argument in Moore v. Harper. The case brings something called the “independent state legislature theory” before the court.

Moore v. Harper is an appeal of a North Carolina case. After the 2020 census data became available, North Carolina’s Republican-majority legislature redrew the maps that establish the state’s Congressional districts. Democrats alleged the new map was an unconstitutional partisan gerrymander—and demonstrably so because it virtually guaranteed a Republican supermajority in the North Carolina congressional seats. The North Carolina Supreme Court agreed. Experts (there are statisticians and political scientists who study how these political maps are drawn and testify in redistricting cases) said the legislature’s map was such a statistical outlier that it was more favorable to Republicans than 99.9999% of the possible maps that could have been drawn would be.

You’d think the legislature would have corrected course after that kind of a ruling. But they didn’t. Their second proposal was another politically gerrymandered map, which led a state judge to order that a special master draw up a fair map for the 2022 congressional elections. A pair of North Carolina Republican legislators went to the Supreme Court and asked them to reinstate their map.

In a 2019 case called Rucho v. Common Cause, the Supreme Court held 5-4 that although partisan gerrymanders are constitutionally odious, it would not decide cases involving them. The Court’s reason was that these types of gerrymanders amount to political cases that aren’t “justiciable” in federal courts. Courts decide legal issues, not political ones. Federal courts were still, after Rucho, able to hear other kinds of cases around the redistricting process, including racially motivated gerrymandering. But the Court decided it was beyond its power to hear cases involving complaints about politically motivated gerrymandering.

The reason the North Carolina case happened at all was because the Rucho Court left open the question of whether state courts had jurisdiction to consider partisan gerrymanders, even when federal courts didn’t. So the North Carolina Supreme Court’s decision was a landmark ruling, establishing that North Carolina’s Constitution prohibits partisan gerrymandering. The obvious impact—while the federal courts are prohibited from providing citizens with a remedy when partisan gerrymandering dilutes the power of their votes, states are still free to do so—was too much for North Carolina Republicans.

Two legislators appealed their Supreme Court’s decision, arguing that the map they’d drawn should be reinstated. But they also made an argument that, if accepted by the Court, would have an impact beyond North Carolina’s borders. They used what, until recently, was considered a fringe right-wing theory that says state courts don’t have the authority to invalidate laws enacted by state legislatures when it comes to federal elections. That’s the independent state legislature theory, and it’s bunk.

The Constitution gives states the power to set the “times, places and manner” of elections for representatives and senators, but Congress retains the ability to “at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.” The independent state legislature theory dramatically misreads the Elections Clause as giving state legislators near-exclusive power over federal elections, along with the ability to prohibit any other branch of state government, the courts or the governor, from operating as a check and balance on the power that legislatures would abscond with. In North Carolina, the argument is that state courts lack the power to stop the state legislature from violating the state’s own constitution when it draws new congressional maps. That’s nonsensical.

Imagine a world where state legislatures could exercise that kind of power and no one could do anything about it. The potential for abuse is unlimited. Voters across the country would have no remedy against the baldest of partisan gerrymanders. And of course, confidence in the integrity of our elections would bottom out.

The independent state legislature theory is not well-received by legitimate legal scholars. It engenders bipartisan opposition—to ISL theory. The bipartisan Conference of Chief Justices, a group made up of the Chief Justices from every state, filed an amicus brief in the case arguing that the Elections Clause does not remove state courts’ authority to determine state election law, “including whether it comports with state and U.S. Constitutions.” That means Republican Chief Justices in conservative states like Alabama and Mississippi joined hands with their liberal brothers and sisters in states like Vermont and California to file this brief with one unified voice. That’s how wrong the theory is.

Is it still wrong enough for this Supreme Court? The Court has rejected the theory for over a century, most recently in 2015 and 2019. But tell that to Roe v. Wade. There is one glimmer of hope: it takes only four votes for the Court to agree to hear a case, as opposed to five votes to decide it. Justices Alito, Thomas and Gorsuch each showed some support for the theory when they voted to take the case in March. Justice Kavanaugh didn’t go that far, but did say he saw “serious arguments” on both sides. It’s not clear whether there is a fifth potential vote for the theory, or whether, after full briefing and argument in the case, the weight of respected legal opinion might influence some of the justices. We’ll get at least some window on their views during the argument on Wednesday.

Also on the docket this week, the justices will hear argument in 303 Creative LLC v. Elenis on Monday. It’s a First Amendment case with facts that may seem somewhat familiar. A Colorado website designer is arguing that she shouldn’t be forced to create custom wedding websites for same-sex couples because she opposes gay marriage on religious grounds. She wants to put a notice on her business website that says so. Doing that would clearly violate a Colorado statute that prohibits businesses that are open to the public from discriminating against or announcing an intent to discriminate against LGBTQ people.

The issue in the case is stated this way: “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” The case resonates with an earlier decision of the Court, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the Court considered, but ultimately punted, on the issue of balancing a business’s desire to choose the customers it would serve against the government’s interest in ending discrimination based on sexual orientation. Instead, the case was decided on a more limited basis, with the Court concluding that Colorado’s Civil Rights Commission expressed impermissible hostility to religion, giving a narrow win to a baker who did not want to make a cake for a gay couple.

303 Creative is a round two of sorts, but it’s important to note that it’s the First Amendment issues, and the clash between freedom of religion and the state’s ability to protect the civil rights of its citizens, that are on the table, not the right to same-sex marriage. When Justice Kennedy wrote the opinion in Masterpiece Cakeshop, he seemed to leave open the possibility that there could be a case where a business owner’s sincere religious beliefs might be overcome by the state’s interest in protecting the rights of same-sex couples. But with this new iteration of the Court, that moment may have passed us by. It’s a complicated case with lots of possible off-ramps short of deciding the central First Amendment issue, but in the clash between religious rights and other rights, this Court has shown an inclination, so far, to credit the former.

That’s two major arguments in the Supreme Court this week, more than enough to keep us busy. But undoubtedly, there will be more. I’m still waiting on my elected officials in Alabama to take a public stand on Trump’s demand that the rule of law be terminated so he can return to the White House. I see a lot of you doing the same.

Joyce Alene @JoyceWhiteVance

Still waiting on a response from my elected officials

Joyce Alene @JoyceWhiteVance

Our elected officials work for all of their citizens & should tell us if they stand with Trump or with the rule of law on this issue. I'd like to hear from mine: @SenShelby @SenTuberville @KatieBrittforAL @kayiveyforgov We should hear from them publicly on such a critical issue. https://t.co/sChrbaqTc8

Let’s keep the heat on them this week and for as long as it takes. You can call (202) 224-3121 and ask to speak with your senators and representatives. Don’t forget email, postcards, letters and calls to district offices too, in addition to social media and requests for in-person meetings. They’ll be keeping track of the calls and other incoming messages this week. Sometimes they need to be reminded that they work for us, and that no matter how difficult they make it, we’re committed to voting in our elections to keep it that way.

We’re in this together,

Joyce