Moore v. Harper – Where Are We Now?
In December 2022, the United States Supreme Court heard oral arguments around the unconstitutional “independent state legislature theory” (ISLT) in Moore v. Harper. Normally, all that would be left is to await the nine justices’ decision on the case by the end of their term in June. Instead, thanks to some recent developments, there are several possible outcomes.
To help you understand what’s at stake, let’s start with how and where this case started.
How did we get here?
Moore v. Harper began when the North Carolina state legislature drew gerrymandered voting maps that would rig future elections. Common Cause joined partners in the state to challenge these unfair maps, and the North Carolina Supreme Court agreed: the state lawmakers’ maps were unconstitutional partisan gerrymanders in violation of state law.
In response to the state supreme court’s decision, North Carolina legislators appealed to the federal Supreme Court. Republican legislators advanced this radical ISLT idea before the Court in an attempt to do an end-run around the state court’s ruling. By using this fringe idea, North Carolina lawmakers are arguing that only state legislators—and no one else—have a role to play in federal elections and redistricting.
Common Cause argued before the Supreme Court last December that constitutional text, structure, history, as well as precedent, make clear that this unconstitutional idea cannot stand, and that the consequences for checks-and-balances of our democracy would be catastrophic.
Dozens of organizations and legal scholars from all sides of the political spectrum agree with us that the Supreme Court must swiftly stop this radical theory once and for all.
Where is the case now?
After the North Carolina Supreme Court made clear last year that such gerrymandering was illegal under North Carolina law, the Court in February 2023 decided to rehear the same case at the behest of Republican state legislators.
Nothing has changed in the case for the state supreme court to grant this unprecedented rehearing—except that the court flipped from majority Democrat to majority Republican. Common Cause’s view is that the ruling should stand, regardless of the political leaning of the court, because the judiciary should never make decisions based on politics—only the rule of law.
After the state supreme court granted a rehearing, the U.S. Supreme Court asked for all parties in Moore v. Harper to tell the Court why it should rule on the case now that the North Carolina court is rehearing it.
In our response, we made clear that the Supreme Court must reject this dangerous and fringe theory, no matter what happens in the state court. None of the facts of the case have changed since the Court heard oral arguments in December—and ISLT continues to pose a grave threat to American democracy.
What comes next?
We now await a decision from both the North Carolina Supreme Court after its recent rehearing, as well as a decision from the U.S. Supreme Court in Moore v. Harper.
The Supreme Court has an opportunity to reject ISLT and defend the checks-and-balances key to American democracy now, ensuring this idea cannot continue to spread and be legitimized by other states and rogue actors. The case has been fully briefed and argued, and the Court has all of the facts that point only in one direction: ISLT is wrong and must be unambiguously rejected.