In the case Moore v. Harper, the U.S. Supreme Court is taking a look at partisan gerrymandering in North Carolina and is weighing the merits of a far-right legal idea known as the independent state legislature (ISL) theory. The ISL, in its most extreme form, argues that only state legislatures should play a role in governing elections in individual states — not governors, not judges, not state supreme courts.
The ISL has been lambasted by a wide range of legal experts and constitutional scholars as anti-democracy, from liberals and progressive to right-wing Never Trump conservatives. But the New York Times’ editorial board, in a scathing editorial published on December 9, goes beyond slamming the ISL — it also slams the Supreme Court for even agreeing to consider Moore v. Harper and the ISL in the first place.
The board explains that in Moore v. Harper, North Carolina Republicans “are relying on an untested theory that asserts that state legislatures enjoy nearly unlimited power to set and change rules for federal elections.”
“In 2000, the chief justice at the time, William H. Rehnquist, proposed the idea in his concurring opinion on Bush v. Gore, and the independent state legislature theory has been floating around the fringes of right-wing legal circles ever since,” the Times’ editorial board explains. “To be clear, this is a political power grab in the guise of a legal theory. Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent.”
The board continues, “The idea that state lawmakers exist free of any constraints imposed by their constitution and state courts makes a mockery of the separation of powers, which is foundational to the American system of government. By the North Carolina lawmakers’ logic, they possess infinite power to gerrymander districts and otherwise control federal elections. It is a Constitution-free zone where no one else in the state — not the governor, not the courts, not the voters through ballot initiatives — has any say.”
The Times’ editorial board notes that when the U.S. Supreme Court heard oral arguments in Moore v. Harper on December 7, Justice Elena Kagan “rejected the theory out of hand.”
“That so many justices would take the theory seriously is bad enough,” the board laments. “Three of them — Justices Alito, Neil Gorsuch and Clarence Thomas — appear to favor the independent state legislature theory, as they suggested in an opinion in an earlier stage of the case. Justice Brett Kavanaugh has also indicated his openness to it. It’s worse when the public trust in and approval of the Court have fallen to historic lows, thanks largely to aggressively partisan recent opinions, as this board has argued.”
The board continues, “There’s an old saying that only close cases make it to the Supreme Court. If they weren’t close, they would have been resolved in the lower courts. But Moore v. Harper isn’t a remotely close case. A ruling for the North Carolina lawmakers would flood the federal courts with election litigation that normally plays out in the states, upending the balance of federalism that defines American government. That’s not a conservative result; it’s a dangerously radical one.”