Moore V. Harper Lawsuit: Fact, Fiction,​ and Predictions

Case Moore v. Harper is set for hearing in late 2022 by the Supreme Court of the United States, with a ruling anticipated a year later, in the summer of 2023. It is being argued that the North Carolina State Supreme Court’s Democrat majority violated the state constitution’s elections clause by twice rejecting congressional districts set by the legislature and subsequently forcing court-drawn districts on North Carolina’s citizens.

The Question Presented By The General Assembly To The U.S. Supreme Court

Is it permissible for the courts to overrule the “Manner of holding Elections for Senators and Representatives” established in state law and replace them with rules of the state courts’ own devising, based on vague state constitutional provisions that purport to give the state judiciary the power to prescribe whatever rules it deems necessary to ensure a “fair” or “free” election?

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Independent State Legislature Doctrine

On March 17, state legislators filed a petition with the U.S. Supreme Court requesting that it hear the matter. A 10-day delay in receiving this documentation occurred because the court had rejected an emergency petition by a vote of 6:3. Using the existing court-ordered election map for the 2022 U.S. House races would have been impossible if an emergency petition had been approved.

It was announced on March 7th that Justice Brett Kavanaugh concurred with the three other members of the Supreme Court who dissented from the majority opinion: Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas. For the Supreme Court of the United States to take up a case, it needs the support of four of the nine justices on the bench.

A legal theory is known as the “independent state legislative doctrine” will be pursued in this case. It holds that the election clause of the Constitution grants exclusive authority to Congress, “without intervention from state courts,” to govern the conduct of federal elections.

Moore V. Harper Lawsuit: Fact, Fiction,​ and Predictions
Moore V. Harper Lawsuit: Fact, Fiction,​ and Predictions

According to the two constitutional articles cited, each state’s legislature is responsible for determining the “Manner” in which presidential electors are chosen and the “Time, Place, and Manner” in which congressional elections are held.

Supreme Court in Smiley v. Holm defined legislature as state legislative procedure, including the governor’s signature or veto override. The case was decided in favor of the state. To form an independent redistricting commission, which was upheld in a case brought by Arizona Independent Redistricting Commission v. Arizona Legislature by the Supreme Court in 2015, the state legislature had to agree.

The vast majority of those polled thought that the legislative process included the option for citizens to vote on their own laws. Some conservative legislators in North Carolina’s General Assembly, on the other hand, are of a different mindset.

The General Assembly said in its petition for a writ of certiorari to examine the North Carolina Supreme Court’s decision:

For federal elections, “each State must establish the method in which such elections will be held.” Constitution of the United States, Art. I, Section 4, Clause 1. Constitutionally, “state legislatures,” not “state courts,” “have primary responsibility for defining election laws,” including those governing how congressional districts are shaped.

“The Framers were aware of electoral districting concerns and contemplated what to do about them,” the Court said recently. They decided on a typical strategy, entrusting the matter to state legislatures, with the Federal Congress acting as a check and balance.”

North Carolina’s Supreme Court ruled that the 2022 election would not be conducted in the “Way” “established… by the Legislature thereof,” but rather in “the manner prescribed by the state’s judiciary,” in the words of the U.S. Constitution’s Article I, Section 4, Clause 1.

To quote Justice Neil Gorsuch from a 2020 concurring opinion in a case involving the deadline for Wisconsin residents to vote by mail, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”

What Does The Constitution say?

Article I, Section 4, Clause 1

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

Article II, Section 2, Clause 2

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

What The Case Is Not About?

NYU Constitutional Law Professor Richard Pildes explained the limitations of the Independent State Legislature concept when it comes to determining Presidential elections:

Even if the Court endorses the doctrine, it would not mean state legislatures could choose to ignore the popular vote in their state and appoint presidential electors themselves.  The Constitution in Art. II expressly gives Congress the power to determine the time at which electors must be chosen.   Since the Presidential Election Day Act of 1845, Congress has set a nationally uniform day for the presidential election.  If a state chooses to use an election for choosing the presidential electors, that election must be on the day Congress has proscribed [Update: if a legislature were to revert to the early 19th-century practice of appointing the electors itself, a highly unlikely prospect, the legislature would have to do this on election day as well].  Electors cannot be chosen after that day.”

Given Congress’ clear constitutional power to determine the timing of the election, state legislatures would still not have the power to ignore the popular vote and decide to appoint electors after election day.  The independent state legislature doctrine, if the Court decides to recognize it, would have no bearing on Congress’ power to lock in the date on which electors must be chosen.


As liberal media sites such as Vox have said, the case does not pose a “grave danger” to democracy in the same way. No, it won’t be “catastrophic” as they say in the Charlotte News & Observer. “This Supreme Court case could be more than a deterioration of democracy, it might blow it up completely,” according to the News & Observer/Charlotte Observer.

Richard L. Hasen, a University of California law and political science professor wrote:

Now may be more limited ways of reading the ISL theory, such as to apply only when a state court or agency decision very strongly deviates from legislative language about how to run federal elections.

What Would It Mean?

People who have a strong belief in the inde­pen­d­ent state legis­lature idea think states have the right to regulate federal elections and that state courts cannot overturn their decisions. Legislative actions regarding federal elections would still be subject to review by federal courts and the House of Representatives.

However, we believe that if the doctrine is widely accepted, the legislature may be able to enact voter ID, proof of citizenship, and other regulations regarding federal elections that cannot be vetoed by a North Carolina governor or reviewed by the state courts if they are enacted by the legislature.

To be clear, we say “possible,” but we don’t believe the courts would issue a judgment that would lead to the creation of separate ballots in states for federal and state and local elections, each with its own set of laws.

What It Won’t Do?

The lawsuit may have long-term repercussions, but it may not have any immediate influence on North Carolina’s congressional redistricting. The court-drawn congressional map will remain in place for the next legislative session.  The Republican-controlled General Assembly will redraw the districts for the 2024 elections, and the GOP is expected to take control of the State Supreme Court.

The new Republican Supreme Court in North Carolina will actually adhere to the wording of the North Carolina Constitution, which is silent on the practice of creating party boundaries. It is expected that the State Supreme Court will accept GOP-drawn districts that offer the party a larger political edge.

The NC Supreme Court Set This Case Up With Gross Overreach

This case got off to a bad start because of the Democrats’ abuse of power on the State Supreme Court. To recap, a federal judge concluded that the GOP had broken the terms of its probation by using political map-drawing techniques that were not authorized by the US Constitution. From that point on, they refused to make public any rules or safeguards that a legislature may rely on for guidance.

These people drew up state constitutional rules, refused to offer clear advice, and established a map design method that demands proportional election results in no other American state or territory. Their own districts were significantly less competitive than those originally drawn up by the legislature. There’s no way the court could have made a case that needed the Supreme Court’s attention more.

Woodshed Prediction

It’s likely that the Supreme Court will side with the Republican-controlled legislature in North Carolina on a narrow set of issues.

Supreme Court will rule that the North Carolina State Supreme Court’s egregious conduct violated the Elections Clause of the Constitution by inventing state constitution provisions that don’t exist, throwing out the legislative redraw of the Congressional maps without explanation, and generally usurping the General Assembly’s ability to perform the role of district drawing that is granted by U.S. Constitution.

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On a limited basis, the court will rule that the independent state legislature may play a role in the redistricting process. If state constitutions explicitly address redistricting, state courts will still have the authority to examine it. Since state courts are from a different political party than the N.C. Supreme Court, they won’t be able to simply make it up like that.

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