In Moore v. Harper, the six justices in the majority rejected arguments for the independent state legislature theory (ISLT), a centuries-old and repeatedly rejected legal theory that’s been used recently by Republicans across the country to establish authority with the state legislature over the courts in redistricting battles.
The theory was brought up in Ohio’s own redistricting fight between Republican lawmakers and a bipartisan majority on the previous Ohio Supreme Court, as GOP leaders like Senate President Matt Huffman claimed that because the General Assembly held the authority under the Elections Clause to establish the “time, place and manner” of elections, the Ohio Supreme Court didn’t have jurisdiction to determine whether or not their district maps were constitutional and valid.
The Ohio Supreme Court disagreed, rejecting U.S. Congressional and Ohio Statehouse maps over and over again, under now-retired Chief Justice Maureen O’Connor, leading to a lawsuit with Huffman as the lead plaintiff, asking the U.S. Supreme Court to reconsider the congressional maps. The maps, attorneys representing GOP leaders said, should be allowed because they are a legislative duty, and therefore fall under the GA’s authority.
North Carolina, in the Moore v. Harper case decided today by the nation’s highest court, asked the court to agree to a similar argument, justified by the independent state legislature theory.
But Chief Justice John Roberts said Tuesday the Elections Clause “does not insulate state legislatures from the ordinary exercise of judicial review,” rejecting the theory when it comes to redistricting and legislative power.
“The court has absolutely put a nail in the coffin of the most extreme versions of the ISLT,” said Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States and professor of law at the Illinois Institute of Technology’s Chicago-Kent College of Law.
Shapiro and other law professors on a press call hosted by the Brennan Center for Justice at NYU Law said it was concerning that the Supreme Court even took up the case, but vindicating that the majority of the court did not officially buy into the theory, which Shapiro said “would have created enormous chaos in our system that’s existed for more than 200 years.”
The constitutional academics also called the ruling a victory for originalism, that is an interpretation of the constitution as the authors understood it when it was being written. That originalism argument, according to George Mason University history professor Rosemarie Zagarri, includes the concept of state legislatures being bound by their own state constitutions, including judicial authority.
“This is basic constitutional theory, this is the basic framework of our whole system of republican government,” Zagarri said.
The ruling most likely means the Ohio case will be moot, according to experts. The case was still awaiting a decision from the U.S. Supreme Court on whether or not they would take up review, but with similar arguments in both cases, the court would essentially be asked to decide the same facts of law, according to Vikram Amar, dean of the University of Illinois College of Law.
“What the lower court did (in the Ohio case) was exactly what happened in this case,” Amar said. “I don’t think the Ohio case is going to have a life after that.”
Redistricting was set to restart in Ohio later this summer, after the budget process ended. In May, Huffman said with the U.S. Supreme Court decision up in the air, the congressional maps could end up being the same as current (unconstitutional) maps for the 2024 election cycle.
The Ohio Statehouse maps could also be the same or similar to the current maps if Huffman’s predictions are correct. That possibility is less likely to have court intervention this time around, as the Ohio Supreme Court’s chief justice now is Sharon Kennedy. Kennedy was a justice during the previous redistricting fights, and stood in support of every map brought before the court since the first attempt in September 2021.
Filling Kennedy’s old seat now on the court is former Hamilton County Prosecutor Joe Deters, a Republican appointed by Ohio Gov. Mike DeWine.
Ohio’s next attempt at a redistricting process may be delayed, as the budget process may go past its June 30 deadline. Ohio House Speaker Jason Stephens previously said he fully expects the budget negotiations to run past their deadline, and the chamber was set to vote on a stopgap funding measure on Tuesday. That vote never took place, however, and a conference committee was scheduled for Wednesday morning.
Ohio Capital Journal is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David DeWitt for questions: info@ohiocapitaljournal.com. Follow Ohio Capital Journal on Facebook and Twitter.