Why NC Legislators Are Arguing a Legal Theory that Could Upend US Democracy

This story originally published online at Carolina Public Press.

House Speaker Tim Moore, R-Cleveland, and Senate President Pro Tempore Phil Berger, R-Rockingham, tried out a legal theory in 2020 elections litigation that had the potential to change the balance of power between the state legislature and the executive branch. 

It failed at every level of state and federal courts.

Now, they’re trying to apply that theory again with a petition to the U.S. Supreme Court, this time over a disagreement with the other branch of government, the state courts.

The argument, called the independent state legislature theory, takes the position that since Article 1 Section 4 of the U.S. Constitution says, “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” the state legislature should be able to write federal election law without check by the other branches of state government.

Since the state Supreme Court blocked partisan gerrymandering on state constitutional grounds, this legal theory is central to North Carolina legislative Republicans’ hopes of gerrymandering the state’s U.S. congressional maps, assuming they control the state legislature after the 2022 elections.

But there are problems with the argument, according to Carolyn Shapiro, a law professor at the Chicago-Kent School of Law who researched the reemergence of the once-obscure theory in 2020.

“It makes no sense and it will cause chaos,” Shapiro said. 

Though the lay reader might think it’s pretty clear—legislature means legislature—Shapiro points to legal scholarship over the last two years that shows the founders’ original meaning of “Legislature thereof” included the legislative mechanisms and checks in a state, including the executive and judicial branches. Reading the line to mean only state legislature, as Moore and Berger do, is a misunderstanding of the constitutional text, she said.

That’s also the position the U.S. Supreme Court came to in the 2015 Arizona Independent Redistricting Commission case in a 5-4 decision. It then referenced that decision favorably in its 2018 Rucho case, meaning the high court would have to overturn or at least evade recent precedent to rule in Moore and Berger’s favor. 

But in the last four years, the court has become more conservative, now with a 6-3 edge over liberal justices, and two of the new conservatives have shown interest in the independent state legislature theory. 

Should a majority of the justices now accept Moore’s and Berger’s interpretation, state courts would no longer have the authority to review federal redistricting, or possibly any federal election law passed by state legislatures. It depends on if the high court takes the case and how much of Moore and Berger’s arguments it adopts.

But even in a narrow ruling, it would be hard for the U.S. Supreme Court to limit the consequences to just map-drawing, according to Derek Muller, a University of Iowa law professor. 

“Once you open that door, you never know how far it can go or who could close it in the future,” Muller said. 

Why only Republicans are pursuing the theory 

Though only Republicans have brought claims based on the theory in this century, there’s nothing inherent to the argument that should favor one political party over the other, Shapiro said. 

In New York, where Democrats control the state legislature and governor’s mansion, state courts blocked the gerrymandered political maps. In California, Democrats who had gerrymandered the state’s maps in their favor gave up the power to draw maps to an independent commission. 

In theory, Democrats in those states could benefit from a concentration of power should the independent state legislature become the law of the land. But they haven’t brought the lawsuits, instead treating the theory as if it’s Pandora’s Box, Muller said. 

Neither Moore nor Berger responded to questions for this story, including why they are bringing the lawsuits or whether they are worried about unintended consequences of the legal theory.  

But examining the political landscape of swing states like North Carolina, Pennsylvania and Wisconsin, the places where the theory has emerged, helps to explain why only Republicans are making legal arguments that could upend how democracy functions in the country. 

Should the U.S. Supreme Court accept this argument, the current political balance seems to favor Republicans because they control 30 state legislatures, including seven of the 12 states with split legislatures and executive branches. Those seven include the key swing states of Michigan, North Carolina, Pennsylvania and Wisconsin. 

By sheer numbers, that means there are more states where Republicans could pass federal election laws in their favor, either by gerrymandering or restricting access to the vote using laws like photo…