The Potential Political Consequences if SCOTUS Dismisses the North Carolina "Independent State Legislature" Case
by Michael C. Dorf
Earlier this month, the Supreme Court issued an order to the parties and the Solicitor General directing them to brief the question whether the Court still has jurisdiction to decide Moore v. Harper, in light of the North Carolina Supreme Court's decision to rehear the case from which Moore is an appeal. Readers may recall that Moore presents the question whether Article I, Section 4 of the Constitution--which assigns to state legislatures the authority to determine the manner of elections for Congress--precludes state court judicial review under the state constitution of political gerrymandering.
The petitioners are Republicans who object to the North Carolina Supreme Court's invalidation of the map drawn by the GOP-controlled legislature and its remand to the trial court to supervise the drawing of (or itself draw) a new map. The Supreme Court heard oral argument in the case in December. As I noted at the time, it was not the finest (nearly three) hour(s) of either the Justices or the advocates. Even so, many observers came away from the argument thinking that the Court was unlikely to adopt the most aggressive version of the "independent state legislature" (ISL) theory advanced by the petitioners.
ISL is a misbegotten and dangerous theory. To see why, readers could do no better than to read the terrific amicus brief by law professors Akhil Amar, Vik Amar, and Steve Calabresi. It makes what I regard as irrefutable arguments based on text, original understanding, structure, and just common sense. One hopes that Professor Calabresi's conservative credentials would also give the brief some added credibility with the Justices who have heretofore flirted with ISL. But the order regarding jurisdiction suggests we won't find out what the Justices think about ISL--at least not this Term. After saying a few words about jurisdiction, I'll speculate about the potential political consequences if SCOTUS dismisses.
The predicate for the latest SCOTUS order is a decision by the North Carolina Supreme Court (NCSC) to rehear the underlying dispute that gave rise to the ruling currently before SCOTUS. Justices of the NCSC are elected, and the last election flipped a 4-3 Democratic majority to a 5-2 Republican majority. The new NCSC Justices wasted no time in moving to reconsider a decision that poses a substantial threat to their fellow Republicans.
Why didn't the NCSC wait for SCOTUS to let it off the hook? That would have been risky. Some observers of the December oral argument thought that SCOTUS might back off of ISL in Moore. But even if the Republican legislators won in SCOTUS, that would still be only a partial victory. The original NCSC decision invalidated the state's political gerrymandering of both the NC congressional delegation and its state legislative districts. ISL applies, if at all, only to congressional districts, so even victory in SCOTUS would leave intact the NCSC order to the trial court to displace the highly gerrymandered state legislative districts with a fair map that might enable Democrats to gain control of the state legislature. The newly Republican NCSC thus acted. It's theoretically possible that, after rehearing, the NCSC will reaffirm the earlier ruling, but that's extremely unlikely.
What happens in SCOTUS? Its order directed the parties and the SG to consider the statute conferring jurisdiction to review state high court "[f]inal judgments or decrees." The obvious suggestion is that with the NCSC now reconsidering the earlier NCSC ruling under review in SCOTUS, that ruling is no longer "final." The SCOTUS order also asks the parties and SG to consider the implications of a 1975 precedent construing the final judgment rule. It allows that a state high court decision can be "final" within the meaning of the jurisdictional statute even though further proceedings in the state courts will occur, setting out four categories of cases that fit within this loophole. My preliminary analysis suggests that Moore does not fit squarely into any of those categories and that therefore the NCSC rehearing in fact deprives SCOTUS of jurisdiction. To be sure, it's possible I'm missing something that one or more of the briefs or the Justices will note in order to preserve SCOTUS jurisdiction. Briefs on the jurisdictional issue are due in a week.
For now, though, I'll assume that SCOTUS will dismiss Moore in order to pose a further question: what are the potential political consequences? By that question, I don't mean what are the consequences for North Carolina. As I've noted, there is little doubt that the NCSC will vacate its prior ruling and allow the political gerrymandered North Carolina legislature to resume political gerrymandering for itself and for the state's congressional delegation. My main concern is the implication for the 2024 Presidential election and other future Presidential elections.
ISL made its first appearance at SCOTUS in the concurrence of Chief Justice Rehnquist, joined by Justices Scalia and Thomas, in Bush v. Gore. The majority opinion found that the Florida recount violated equal protection because standards for evaluating ballots varied from county to county. CJ Rehnquist added a more fundamental objection. The Florida Supreme Court, he said, in ordering a recount in the first place, had engaged in such a loose construction of the state statutes governing elections as to effectively usurp the role of the state legislature prescribed by Article II, Section 1: "Each State shall appoint, in such Manner as the Legislature thereof may direct" the state's representatives in the Electoral College. The Bush v. Gore concurrence thus would have held that the standard practice by which federal courts accept state court interpretations of state law as authoritative does not apply where state laws govern federal elections. And just as the Bush v. Gore concurrence view of Article II, Section 1 had implications for ISL as applied to the parallel provision of Article I, Section 4 in Moore, so a SCOTUS ruling in Moore would have implications for ISL in a future disputed Presidential election.
In the aftermath of the 2020 Presidential election, Donald Trump persuaded individual state legislators but not a majority of any state legislature to undertake the bold gambit of decertifying the slate of Biden electors and substituting a slate of Trump electors. The failure to obtain the cooperation of any state legislature as a whole explains why the scheme to enlist Vice President Mike Pence to throw out electoral votes had no chance of succeeding. Even if Pence's role were not purely ceremonial, he would have had no basis for saying that there was a genuine contest over what slate of electors to count. The purported alternative slates of electors had nothing resembling official status.
However, as Professor Buchanan and I have been warning for quite some time now, things could go differently in 2024. Suppose that Trump is again the GOP nominee or, if not, that the GOP nominee has the same disregard for norms of American democracy that Trump does. Suppose further that the Democratic candidate (presumably Biden) wins the Electoral College vote but it's close enough that Republicans need to flip only one state in order to swing the election. Whether acting pursuant to new voter suppression laws that also give state legislatures or their flunkies the power to act or by enacting new legislation revoking the previously established mechanism for choosing electors, a state legislature might declare (even without evidence) the victory of the Democratic candidate fraudulent and designate a Republican slate of electors. Would that gambit be legal?
One substantial legal obstacle is a provision of the Electoral Count Reform Act (Division P of this omnibus law passed late last year), which does not allow a state legislature to substitute its own slate of electors after election day; it only allows the state to delay the popular election, and then only pursuant to laws enacted before the election and only "as necessitated by force majeure events that are extraordinary and catastrophic." This is a marked improvement over the provision that was previously on the books, which allowed a state legislature to designate a new method of selecting electors (including direct legislative appointment) whenever an election "failed." One could imagine that a state legislature might have invoked bogus claims of fraud to declare an election "failed" and run the Trumpian play.
The Electoral Count Reform Act closed off that statutory gambit, but the next move for Republicans would be to argue that the statute is unconstitutional. I think that argument should fail. After all, Article II, Section 1 empowers Congress to "determine the time of choosing the electors," and the relevant provision of the Electoral Count Reform Act concerns timing. However, I wouldn't take five SCOTUS votes for granted, especially if the outcome will determine whether a Republican or Democrat wins the White House.
What about ISL? There are currently no swing states with wholly Republican legislatures and Democratic-leaning state supreme courts. North Carolina and Pennsylvania fell into that category in 2020, but Republican capture of the NCSC and Democratic capture of the PA House have changed that. Depending on the outcome of next month's state supreme court election, Wisconsin could be one such state. So one might think that ISL's role in the next post-presidential election period is quite limited. Maybe the GOP-controlled legislature will try to substitute R for D electors and the Wisconsin Supreme Court will try to stop it, teeing up the ISL question. But it's hard to imagine that the Republican candidate would concentrate on Wisconsin in such circumstances, rather than try to run the play through a state that the Democrat narrowly wins where Republicans control both the state legislature and the state supreme court.
Even so, ISL could play a role. After all, ISL doesn't purport to limit only state courts; in its robust versions, it also limits federal courts. Thus, the course of post-election litigation in the lower federal courts could turn on whether SCOTUS accepts or rejects ISL. If the Republican candidate were to induce, say, the Arizona, Georgia, and North Carolina legislatures to substitute a Republican slate of electors for the Democratic slate chosen by the voters, one could imagine Democrats suing in federal court to block the move. The Electoral Count Reform Act provides for jurisdiction over such a case in a 3-judge federal district court followed by expedited appeal to SCOTUS.
Accordingly, if SCOTUS dismisses Moore on jurisdictional grounds, its next opportunity to confront ISL could be in the extremely high-stakes setting of a post-presidential-election contest. To my mind, that's unfortunate.
It was possible to imagine that a couple of Republican appointees might have ruled against the more aggressive versions of ISL in Moore. (They still might if the Court retains jurisdiction.) After all, in Rucho v. Common Cause, Chief Justice Roberts reassured readers that the non-justiciability of challenges to political gerrymandering in federal court did not preclude such challenges in state courts. It would have been extremely awkward for him and the Justices who joined that opinion to say in Moore that no, state courts are closed too. Accordingly, I thought there was a decent chance of the Court rejecting ISL in Moore.
Moreover, although the stakes in Moore are/were high, they're not nearly as high as they will be in a presidential election. Even assuming that all of the Justices make a good-faith effort to decide such a case in a non-partisan fashion, it's hard to imagine them not being pulled by their partisan druthers. If the Court were to address an Article II ISL case in a presidential election context after having rejected ISL in Moore, that could have stiffened the spines of a couple of the Republican appointees.
Finally, if the Court were to reject ISL in Moore, that would dissuade a future losing presidential candidate from even attempting the state legislative reversal move. If Moore leaves the docket and ISL remains indeterminate, the temptation remains.