What? So What? Now What?: SCOTUS and Moore v. Harper

A primer on a U.S. Supreme Court case – and the fringe constitutional theory behind it – that could radically change American elections.



On Dec. 7, 2022, the U.S. Supreme Court will hear oral arguments in Moore vs. Harper, a North Carolina case that could have wide-ranging effects on the nation’s federal elections.
At the heart of the dispute is a fringe legal doctrine called the “independent state legislature” theory. It goes like this: Under the U.S. Constitution, only state legislatures have the power to regulate federal elections. This power is absolute, the theory goes – legislatures can act without approval from governors or intervention by state courts. Proponents cite the U.S. Constitution’s elections clause, which grants state legislatures the ability to set the “Times, Places and Manner of holding Elections for Senators and Representatives,” as justification.
The U.S. Supreme Court passed on hearing Moore v. Harper in March, but then agreed in June to take the case. The dispute emerged from the North Carolina Legislature’s 2021 adoption of Congressional maps that heavily favored one party. A group of voters challenged the map in state court, alleging they were unconstitutionally gerrymandered. The North Carolina Supreme Court agreed, which led proponents to eventually appeal to the U.S. Supreme Court.

 So what?

Moore v. Harper started as a redistricting dispute. Yet, any U.S. Supreme Court ruling that addresses the “independent state legislature” theory could have far-reaching effects on the scope of state legislatures’ power in all aspects of federal elections. It could mean that in states in which legislatures are controlled by one party, that party could gerrymander freely without oversight from other parts of government. More worrisome, this also could open the door to legislators appointing slates of “alternate” presidential electors that do not represent or reflect their states’ popular votes. Proponents further assert that state courts have no power to intervene, even if legislatures violate their state constitution.
This would be seismic to American democracy, starting with the 2024 presidential election. Regardless of who wins the popular vote in the respective states, legislatures would be authorized to appoint whoever they wanted to the Electoral College – and there would be no recourse, either for governors or voters, to challenge this absolute authority.
Opponents say giving partisan lawmaking bodies sole control of election rules – and, inevitably, election outcomes – consists of nothing more than a partisan power grab. Some observers also have said it would amount to “making up law to create one-party rule.”

Now what?

The Court hears oral arguments in Washington, D.C., on Dec. 7. It is expected to rule next summer. As justices deliberate, Congress could choose to act to reform relevant election laws. The Constitution gives Congress the authority to “at any time by law, make or alter” election rules adopted by state legislatures. Congress could specify that any changes to election law made by individual state legislatures would be bound to long-established procedures (eg., gubernatorial approval and review by state courts). However, federal lawmakers are unlikely to act before the end of 2022.

Additional resources

Brennan Center for Justice: Moore v. Harper, explained | Annotated guide to amicus briefs in Moore v. Harper
American Civil Liberties Union: Court cases: Moore v. Harper
POLITICO: The court case that could transform U.S. elections

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