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Moore v. Harper

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Moore v. Harper
Term: 2022
Important Dates
Argued: December 7, 2022 Decided: June 27, 2023
Outcome
affirmed
Vote
6-3
Majority
Chief Justice John Roberts •Sonia Sotomayor •Elena Kagan •Brett Kavanaugh •Amy Coney Barrett •Ketanji Brown Jackson
Concurring
Brett Kavanaugh
Dissenting
Clarence Thomas •Samuel Alito •Neil Gorsuch

Moore v. Harper is a case that was decided by theSupreme Court of the United States on June 27, 2023, during the court'sOctober 2022-2023 term. The case was argued before theSupreme Court of the United States on December 7, 2022.

HIGHLIGHTS

The issue: The case concerned the elections clause inArticle I, section 4 of the Constitution and whether state legislatures alone are empowered by the Constitution to regulate federal elections without oversight from state courts.Click here to learn more about the case's background.

The questions presented: "Whether a State's judicial branch may nullify the regulations governing the "Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof," U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts' own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a "fair" or "free" election."^[1]

The outcome: The courtaffirmed the decision of theNorth Carolina Supreme Court in a 6-3 ruling, holding that the state court had the authority to decide whether North Carolina's congressional district boundaries complied with state law.

Why it matters: If the court had ruled in favor of the petitioners, the power and authority to regulate federal elections would have becomemore concentrated in state legislatures and with the federal judiciary in the event of appellate review.

After the U.S. Supreme Court heard oral argument in the case on December 7, 2022, theNorth Carolina Supreme Court voted to re-hear the case at the state level, which prompted SCOTUS to ask all parties to file briefs regarding its jurisdiction in the case.Click here to read more about these events.

The case came on awrit ofcertiorari to theNorth Carolina Supreme Court. To review the lower court's opinion,click here.

Timeline

The following timeline details key events in this case:

June 27, 2023: TheU.S. Supreme Courtaffirmed the decision of theNorth Carolina Supreme Court.
May 4, 2023: TheU.S. Supreme Court directed all parties inMoore v. Harper to file supplemental letter briefs in the case by May 11. The court's order asked the parties, "What is the effect on this Court’s jurisdiction of the April 28, 2023 order of the North Carolina Supreme Court?"^[2]
April 28, 2023: TheNorth Carolina Supreme Court overturned their February 4, 2022, decision that the state's enacted congressional map was unconstitutional due to partisan gerrymandering and vacated the maps the legislature enacted in 2021 and the remedial maps used for the 2022 elections.
March 14, 2023: TheNorth Carolina Supreme Court re-heard oral arguments inMoore v. Harper.
March 2, 2023: TheU.S. Supreme Court directed all parties in the case to file supplemental briefs by March 20, 2023, regarding SCOTUS' jurisdiction in light of theNorth Carolina Supreme Court's decision to rehear the case.
February 3, 2023: TheNorth Carolina Supreme Court voted to re-hear the case on March 14, 2023.
January 20, 2023: TheNorth Carolina legislature petitioned theNorth Carolina Supreme Court to rehearMoore v. Harper. As a result of the 2022 elections, that court flipped from a 4-3 Democratic majority to a 5-2 Republican majority.
December 7, 2022:The U.S. Supreme Court heard oral argument.
June 30, 2022: The U.S. Supreme Court agreed to hear the case.
March 17, 2022: Speaker of theNorth Carolina House of Representatives Timothy K. Moore (R) appealed to the U.S. Supreme Court.
March 7, 2022: TheUnited States Supreme Court declined to block the enacted congressional map, with JusticesSamuel Alito,Clarence Thomas, andNeil Gorsuch dissenting. In the dissent and in a concurrence by JusticeBrett Kavanaugh, the justices stated that theindependent state legislature doctrine was an important question for the court to resolve. (Moore v. Harper).
February 25, 2022: Republican state legislators filed an emergency appeal with the U.S. Supreme Court, asking to halt the state court's order until SCOTUS could review the case (Moore v. Harper).
February 23, 2022: TheWake County Superior Court issued a ruling rejecting theNorth Carolina General Assembly's redrawn congressional map and enacted congressional district boundaries drawn by three court-appointed redistricting special masters.^[3]^[4]
February 4, 2022: TheNorth Carolina Supreme Court ruled 4-3 that the state's enacted congressional and legislative maps were unconstitutional whichreversed the Wake County court's ruling. The state supreme courtremanded the case for further proceedings.
January 11, 2022: TheWake County Superior Court upheld the congressional district boundaries that the legislature enacted.
December 8, 2021: TheSupreme Court of North Carolina ordered that the state's 2022 primary election be postponed from March 8 to May 17 in response to lawsuits challenging North Carolina's newly enacted congressional and state legislative district plans.
November 5, 2021: A group of Democratic Party-affiliated voters filed a lawsuit in state court challenging the legislature's enacted congressional districts, alleging that the new map was a partisan gerrymander that violated the state constitution.
November 4, 2021: TheNorth Carolina General Assembly adopted new congressional district boundaries after the 2020 census.

Background

The caseMoore v. Harper concerned the elections clause in Article I, section 4 of the Constitution and whether state legislatures alone are empowered by the Constitution to regulate federal elections without oversight from state courts.^[5]

On November 4, 2021, theNorth Carolina General Assembly adopted a new congressional voting map based on 2020 Census data. The legislature, at that time, was controlled by theRepublican Party. In the caseHarper v. Hall (2022), a group of Democratic Party-affiliated voters and nonprofit organizations challenged the map in state court, alleging that the new map was a partisan gerrymander that violated the state constitution.^[5] On February 14, 2022, theNorth Carolina Supreme Court ruled that the state could not use the map in the 2022 elections andremanded the case to the trial court for further proceedings. The trial court adopted a new congressional map drawn by three court-appointed experts.^[5]^[6]

In the court's majority opinion, JusticeRobin Hudson wrote:^[6]

“

Today, we answer this question: does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote? Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others? We hold that our constitution’s Declaration of Rights guarantees the equal power of each person’s voice in our government through voting in elections that matter.

... Our dissenting colleagues have overlooked the fundamental reality of this case. Rather than stepping outside of our role as judicial officers and into the policymaking realm, here we are carrying out the most fundamental of our sacred duties: protecting the constitutional rights of the people of North Carolina from overreach by the General Assembly. Rather than passively deferring to the legislature, our responsibility is to determine whether challenged legislative acts, although presumed constitutional, encumber the constitutional rights of the people of our state. Here, our responsibility is to determine whether challenged apportionment maps encumber the constitutional rights of the people to vote on equal terms and to substantially equal voting power. This role of the courts is not counter to precedent but was one of the earliest recognized. In 1787, inBayard v. Singleton, 1 N.C. (Mart.) 5 (1787), in a passage quoted by the dissenters, the Court held that it must step in to keep the General Assembly from taking away the state constitutional rights of the people, and “if the members of the General Assembly could do this, they might with equal authority . . . render themselves the Legislators of the State for life, without any further election of the people[,]” id. at 7. This we cannot countenance.^[7]

”

On February 25, 2022, prior to the state's primary election on May 17, Republican state legislators filed an emergency appeal with the U.S. Supreme Court, asking to halt the state court's order until SCOTUS could review the case. The court denied the request. JusticesSamuel Alito,Clarence Thomas, andNeil Gorsuch dissented. In the dissent and in a concurrence by JusticeBrett Kavanaugh, the justices stated that theindependent state legislature doctrine was an important question for the court to resolve.^[5]^[8]^[9]

On March 17, 2022, Speaker of theNorth Carolina House of Representatives Timothy K. Moore (R) filed a petition for awrit ofcertiorari in the case. The court granted review on June 30, 2022.

Independent State Legislature Theory

See also:Independent State Legislature Theory

The issues discussed in this case are also known as theindependent state legislature theory or doctrine (ISL).Independent State Legislature theory or doctrine (ISL) states that theU.S. Constitution gives state legislatures the authority to regulate federal elections. Since this power comes directly from the U.S. Constitution – and not state constitutions – state judges, governors, secretaries of state, and other state officials cannot intervene to change federal election rules established by state legislatures, according to the theory. Under the Constitution, checks on state legislatures’ power to regulate federal elections come from federal courts and the U.S. Congress.^[10]^[11]

Florida State University College of Law professor Michael Morley, a proponent of ISL, wrote, "The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution."^[10]^[12]

Vikram David Amar, a University of Illinois law professor, and Akhil Reed Amar, a Yale University law professor, who oppose ISL, wrote, "The theory invokes constitutional provisions designed to protect states against federal interference (including interference from federal courts) and instead uses these provisions to disrespect both the wishes of the state peoples who create, empower, and limit their legislatures, and the wishes of the elected legislatures themselves. The theory gives near carte blanche to federal judges, when the key point of Article II’s election language (and the companion language of Article I) was to empower states."^[11]

Questions presented

Thepetitioner presented the following questions to the court:^[1]

Questions presented:

“

Whether a State's judicial branch may nullify the regulations governing the "Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof," U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts' own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a "fair" or "free" election.^[7]

”

Petition forwrit of certiorari and initial briefs

The petition forwrit of certiorari is a formal request asking the U.S. Supreme Court to review a case. It generally outlines the legal reasons why the Court should consider the legal questions that the case presents.^[13] Briefs in opposition to a petition for a writ of certiorari are filed by the opposing parties (known asrespondents) and present the arguments for denying the petition along with any perceived misstatements in the original petition.^[14]

March 17, 2022Petition for Writ of Certiorari

May 20, 2022Brief in Opposition of Respondents North Carolina League of Conservation Voters, Inc., et al.

May 20, 2022Brief in Opposition by State Respondents

May 20, 2022Brief in Opposition of Respondent Common Cause

May 20, 2022Brief for Harper Respondents in Opposition

May 27, 2022Reply Brief for Petitioners

Supplemental briefs regarding North Carolina Supreme Court's actions after SCOTUS heard case

Actions after NCSC issued ruling

On May 4, 2023, theU.S. Supreme Court directed the parties inMoore v. Harper to file supplemental letter briefs in the case by May 11, 2023. The court's order asked the parties, "What is the effect on this Court’s jurisdiction of the April 28, 2023 order of the North Carolina Supreme Court?"^[15]

Amy Howe wrote atSCOTUSBlog, that the court "asked lawyers...to weigh in on whether the court can still hear the case in the wake of a recent ruling by the North Carolina Supreme Court, which reversed its earlier decision in the underlying redistricting dispute that sparked the case...Once those briefs have been filed, the justices could dismiss the case (as one set of challengers has already suggested they should), or they could continue to decide the case on the merits."^[16]

Howe also wrote, "The timing of the justices’ decision likely could depend on the result that it reaches. An order simply dismissing the case could come relatively quickly after the supplemental briefs are filed on May 11, although such an order could take longer if it is accompanied by separate dissents or statements from one or more justices. In any event, the justices are expected to act on the case by late June or early July, when they begin their summer recess."^[16]

Click here to read theU.S. Supreme Court's May 4, 2023, order

Links to each party's brief appear below:^[17]

Actions after NCSC decided to rehear case

On January 20, 2023, theNorth Carolina legislature petitioned theNorth Carolina Supreme Court to rehearMoore v. Harper in state court, and on February 3, 2023, the state supreme court voted to re-hear the case. As a result of the2022 elections, the North Carolina Supreme Court flipped from a 4-3 Democratic majority to a 5-2 Republican majority.

On March 2, 2023, theU.S. Supreme Court directed all parties to file supplemental briefs by March 20, 2023, regarding SCOTUS' jurisdiction in light of the state supreme court's decision to rehear the case.

The briefs outlined each party's view on whether SCOTUS still had jurisdiction in light of the state court's decision to re-hear the case.Reuters' Joseph Ax wrote that "If the justices decide they no longer have jurisdiction, they could dismiss the case without issuing a ruling."^[18] Amy Howe wrote atSCOTUSblog, “Lawyers involved in [Moore v. Harper] disagreed on Monday about whether the Supreme Court has the power to reach a decision in the case.”^[19]

The legislators that brought the case told the justices the Court should decide on the case. In their brief, the group said, "the North Carolina Supreme Court decision to rehear [the case] had no effect on this Court’s continued jurisdiction.”^[20]
Attorneys representing the state of North Carolina wrote, "The State's 2022 congressional elections have already taken place under the state court's interim map, and Petitioners will suffer no prejudice from letting the ordinary appeals process play out...Although the Court has already received briefing and heard oral argument in this case...The decisions on review are nonfinal, and this Court should therefore dismiss the case for lack of jurisdiction."^[21]

Links to each party's brief appear below:^[22]

Petition forwrit ofcertiorari

Below are excerpts from North Carolina House SpeakerTimothy Moore's petition forwrit ofcertiorari to theUnited States Supreme Court:^[23]

“

REASONS FOR GRANTING THE WRIT

The North Carolina Supreme Court’s actions nullify the North Carolina General Assembly’s regulations of the manner of holding federal elections in the State and replace them with new regulations of the 14 judiciary’s design. Those actions are fundamentally irreconcilable with the Constitution’s Elections Clause. To secure self-government, that provision vests the power to regulate federal senate and congressional elections in each State’s legislature, subject only to supervision by Congress. The state supreme court’s usurpation of that authority—pursuant to vague and indeterminate state constitutional provisions securing free speech, equal protection, and free and fair elections—simply cannot be squared with the lines drawn by the Elections Clause. The state judiciary’s actions raise profoundly important issues that have divided the lower courts, that have been repeatedly presented to this Court for review, and that will continue to recur until this Court finally resolves them.

... This case finally presents the Court with “an opportune occasion” to resolve, once and for all, the festering issue of a state legislature’s authority, under the Elections Clause, to regulate the times, places, and manner of federal elections free from interference by other state branches and entities.Moore, 142 S. Ct. at 1090. (Alito, J., dissenting from the denial of application for stay). The Court should grant the writ and end the conflict in the lower courts over this critical question of nationwide importance.

... The short of it is this: the decisions by the courts below to nullify the General Assembly’s chosen “Regulations” of the “Manner of holding Elections,” U.S. CONST. art. I, § 4, cl. 1, and to replace them with new regulations of their own, discretionary design, simply cannot be squared with the text and original meaning of the Elections Clause, nor with this Court’s interpretation of it.^[7]

”

Brief in Opposition

Below are excerpts from the Harper respondents in opposition to Moore's petition for writ of certiorari before theUnited States Supreme Court:^[24]

“

REASONS TO DENY THE PETITION

Certiorari should be denied for numerous reasons. This Court lacks jurisdiction because the petition seeks review of interlocutory orders, including an order of the state trial court that is currently on appeal to the North Carolina Supreme Court. Beyond that, this case is a poor vehicle to address whether the federal Elections Clause forbids state courts from reviewing the constitutional validity of legislatively enacted congressional plans, because statutes enacted by the North Carolina General Assembly specifically authorize state courts to do so. In all events, Petitioners’ Elections Clause theory lacks merit. It is contrary to the constitutional text and history, over a century of this Court’s precedent, and settled federalism principles recognizing the unfettered prerogative of state supreme courts to interpret their own state constitutions. Petitioners’ newfound argument that the Elections Clause allows state legislatures to disregard some but not all provisions of state constitutions in regulating federal elections does not warrant this Court’s plenary review.

... Jurisdictional and vehicle problems aside, the decisions below were correct as a matter of text, history, precedent, and constitutional structure. Nothing in the Elections Clause permits a state legislature to violate the state constitution, as construed by the state’s highest court, in enacting congressional redistricting legislation—no more than it permits Congress to ignore this Court’s decisions interpreting the U.S. Constitution. This Court has so held many times, and Petitioners present no persuasive argument for revisiting those holdings.

... The unprecedented holding Petitioners seek would upend this nation’s federalist system and threaten to nullify dozens of state constitutional provisions across the country. For example, nearly every state’s constitution contains provisions affording citizens the right to vote if they meet specified qualifications. Other states have more recently adopted state constitutional provisions guaranteeing voting rights in all elections, relying on the settled principle that state constitutions can provide broader or more specific protections for voting rights than the U.S. Constitution.^[7]

”

Amicus briefs

Anamicus curiae is a person or group who is not a party to a legal action, but has a strong interest in the matter and has petitioned the court to submit a brief offering relevant information or arguments.^[25]^[26] All parties inMoore v. Harper consented in July 2022 and August 2022 to the filing of such amicus briefs.^[27]

As of the case's oral argument,70 amicus briefs were filed with the U.S. Supreme Court in this case, with 17 filed in support of the petitioners, 48 filed in support of the respondents, and five in support of neither party.^[27]^[28] Each brief listed below can be viewed by clicking on the name of theamicus curiae. (Note: The petitioners are those parties asking the court to rule that state legislatures can regulate federal elections without oversight from state courts, and the respondents are parties opposed to a ruling that state legislatures can regulate federal elections without oversight from state courts.)

Amicus briefs filed in Moore v. Harper in support of Neither Party^[27]
Date	Amicus Curiae
September 2, 2022	John R. Ashcroft, Secretary of State of Missouri
September 2, 2022	Wisconsin Voter Alliance and Pure Integrity Michigan Elections
September 6, 2022	Group of New York Voters
September 6, 2022	Conference of Chief Justices
September 6, 2022	Arizona Independent Redistricting Commission

Amicus briefs filed in Moore v. Harper in support of Petitioners^[27]
Date	Amicus Curiae
September 2, 2022	State Senator Kim Ward and the Republican Caucus of the Pennsylvania Senate
September 2, 2022	Restoring Integrity and Trust in Elections, Inc.
September 6, 2022	Lawyers Democracy Fund and State Legislators
September 6, 2022	Citizens United, Citizens United Foundation, and The Presidential Coalition
September 6, 2022	APA Watch
September 6, 2022	America First Legal
September 6, 2022	American Legislative Exchange Council
September 6, 2022	Arkansas, Arizona, Alabama, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas, and Utah
September 6, 2022	White House Watch
September 6, 2022	Honest Elections Project
September 6, 2022	Taxpayers for Honest Elections
September 6, 2022	National Republican Redistricting Trust
September 6, 2022	Claremont Institute's Center for Constitutional Jurisprudence
September 6, 2022	America's Future, Inc.
September 6, 2022	The Republican National Committee, the NRCC & the North Carolina Republican Party
September 6, 2022	Public Interest Legal Foundation
September 6, 2022	White House Watch

Amicus briefs filed in Moore v. Harper in support of Respondents^[27]
Date	Amicus Curiae
October 20, 2022	Thomas Griffith, et al.
October 24, 2022	Stephen M. Shapiro
October 24, 2022	Michael L. Rosin
October 24, 2022	Professors Akhil Reed Amar, et al.
October 25, 2022	Puerto Rico House of Representatives
October 25, 2022	Richard L. Hasen
October 25, 2022	Campaign Legal Center, et al.
October 25, 2022	Charles Plambeck and Joni Walser
October 25, 2022	Local Government Law Professors
October 26, 2022	Bipartisan Current and Former Election Officials Donetta Davidson, et al.
October 26, 2022	Law Forward, et al.
October 26, 2022	Scholars of the Founding Era
October 26, 2022	District of Columbia, Illinois, et al.
October 26, 2022	American Civil Liberties Union, the ACLU of North Carolina, , et al.
October 26, 2022	FairDistricts Now
October 26, 2022	Gov. Arnold Schwarzenegger
October 26, 2022	Professor Derek T. Muller
October 26, 2022	Bipartisan Group of Former Public Officials, et al. From Pennsylvania
October 26, 2022	American Bar Association
October 26, 2022	Scholars of State Constitutional Law
October 26, 2022	Professor Evan Bernick
October 26, 2022	Benjamin L. Ginsberg
October 26, 2022	Women4Change Indiana, Inc.
October 26, 2022	League of Women Voters of The United States, et al.
October 26, 2022	Carolyn Shapiro, et al.
October 26, 2022	Former Republican Elected and Executive Branch Officials
October 26, 2022	The Anti-Defamation League, et al.
October 26, 2022	The National Association of Counties, et al.
October 26, 2022	William M. Treanor
October 26, 2022	Brennan Center for Justice at NYU School of Law
October 26, 2022	State Constitutional Historians Lawrence Friedman and Robert F. Williams
October 26, 2022	NAACP Legal Defense & Educational Fund, Inc.
October 26, 2022	The Making Every Vote Count Foundation and The Leadership Now Foundation
October 26, 2022	Lawyers Defending American Democracy
October 26, 2022	North Carolina Senator Daniel T. Blue, Jr. and North Carolina Representative Robert T. Reives, II
October 26, 2022	United States
October 26, 2022	Constitutional Accountability Center
October 26, 2022	Retired Four-Star Admirals and Generals, and Former Service Secretaries of the U.S. Armed Forces
October 26, 2022	Human Rights Watch
October 26, 2022	Current and Former Election Administrators
October 26, 2022	The Lawyers’ Committee For Civil Rights Under Law and Fourteen additional Organizations
October 26, 2022	U.S. Senator Sheldon Whitehouse and Representative Henry “Hank” Johnson, Jr.
October 26, 2022	Democracy and Race Scholars
October 26, 2022	Eugene H. Goldberg
October 26, 2022	Secretaries of State of Colorado, et al.
October 26, 2022	Public Citizen
October 26, 2022	Boston University Center for Antiracist Research and Professor Atiba R. Ellis
October 26, 2022	Senator Amy Klobuchar, et al.

Oral argument

Audio

Audio of oral argument:^[29]

Your browser doesn't support the audio tag.

Transcript

Transcript of oral argument:[30]

Media coverage

This section includes links and excerpts from articles related to the case.

Coverage after SCOTUS issued ruling

This section includes a selection of articles published in the two weeks after the U.S. Supreme Court published its ruling in the case.

Click the link in the "Title" column of the charts below to access the article.

Post-ruling media coverage
Publisher	Writer	Title	Publication date
SCOTUSblog	Amy Howe	Supreme Court rules against North Carolina Republicans over election law theory	June 27, 2023
Washington Examiner	Kaelan Deese	Supreme Court rules against North Carolina GOP in congressional map fight	June 27, 2023
Bloomberg	Greg Stohr	Supreme Court Rejects GOP Bid to Transform Federal Election Law	June 27, 2023
Reason	Ilya Somin	Steve Calabresi on Moore v. Harper	June 28, 2023
NPR	Hansi Lo Wang	What the Supreme Court's rejection of a controversial theory means for elections	June 30, 2023
Lawfare	John Sullivan Baker & Brandon Broukhim	Moore v. Harper Explained	July 3, 2023

Coverage after oral argument

This section includes a selection of articles published in the two weeks after the U.S. Supreme Court heard oral argument in the case.

Click the link in the "Title" column of the charts below to access the article.

Media coverage after oral argument
Publisher	Writer	Title	Publication date
Bloomberg Law	Greg Stohr	Supreme Court Struggles to Limit Case Aiming to Give States Ability to Upend Election Law	December 7, 2022
Howe on the Court	Amy L Howe	Court seems unwilling to embrace broad version of “independent state legislature” theory	December 7, 2022
American Legislative Exchange Council	Catherine Mortensen	States Legislatures, Not Courts, Have Authority Over Federal Elections in their States: ALEC Attorneys	December 9, 2022
Bloomberg Law	Kimberly Strawbridge Robinson	Justices, Advocates Look to Different Histories in Voting Case	December 9, 2022
The New York Times	The Editorial Board	This Case Should Never Have Made It to the Supreme Court	December 9, 2022
Justia	Vikram David Amar	Post-Argument Analysis in the Moore v. Harper Case Raising the So-Called “Independent State Legislature” (ISL) Theory: What Might the Court Do?	December 13, 2022
National Constitution Center	Vikram Amar, Jason Torchinsky, & Jeffrey Rosen	The Supreme Court Considers the Independent State Legislature Theory (podcast)	December 15, 2022
Pennsylvania Capital-Star	Bruce Ledewitz	The one good thing about the independent state legislature theory	December 16, 2022

Coverage before oral argument

This section includes a selection of articles published before the U.S. Supreme Court hear oral arguments in the case.

Click the link in the "Title" column of the charts below to access the article.

Media coverage before oral argument
Publisher	Writer	Title	Publication date
SCOTUSblog	Amy Howe	Justices will hear case that tests power of state legislatures to set rules for federal elections	June 30, 2022
Above the Law	Joe Patrice	Just An FYI, The Supreme Court Is Going To Cancel Democratic Elections Next Year	June 30, 2022
National Public Radio (NPR)	Hansi Lo Wang	How the Supreme Court could radically reshape elections for president and Congress	June 30, 2022
The New York Times	Adam Liptak	Supreme Court to Hear Case on State Legislatures’ Power Over Elections	June 30, 2022
The Washington Post	Robert Barnes	Supreme Court to review state legislatures’ power in federal elections	June 30, 2022
Vox	Ian Millhiser	A new Supreme Court case is the biggest threat to US democracy since January 6	June 30, 2022
Slate	Richard L. Hasen	It’s Hard to Overstate the Danger of the Voting Case the Supreme Court Just Agreed to Hear	June 30, 2022
Forbes	Alison Durkee	Supreme Court Takes Up Case That Could Make It Easier To Overturn Elections	June 30, 2022
Bloomberg	Greg Stohr	US Supreme Court to Weigh Election-Law Overhaul in Voting-Map Case	June 30, 2022
News & Observer	Will Doran	Supreme Court will hear NC case with 2024 presidential election implications	June 30, 2022
Washington Times	Alex Swoyer	Supreme Court to hear two election cases next term, progressives warn it could ‘upend’ democracy	July 22, 2022
National Review	Carrie Campbell Severino	Unpacking the Left’s Disinformation Campaign about Moore v. Harper	August 31, 2022
POLITICO	Ethan Herenstein & Brian Palmer	Fraudulent Document Cited in Supreme Court Bid to Torch Election Law	September 15, 2022
ABA Journal	Debra Cassens Weiss	State chief justices oppose 'independent state legislature' theory in Supreme Court election case	September 8, 2022
Reason	Will Baude	The Constitutional State Legislature Doctrine	October 13, 2022
Amicus	Dahlia Lithwick	The Supreme Court Case That Could Upend Democracy	October 22, 2022
5-4 Pod	Prologue Projects	Independent State Legislature Theory	October 25, 2022
Washington Examiner	Kaelan Deese	Supreme Court wrestles with 'independent state legislature' theory in election case	December 7, 2022

Media narratives

Below are excerpts from pre-ruling media coverage that described the issues regarding the case after the Supreme Court grantedcertiorari:

Amy Howe atHowe on the Court:

"The doctrine at the heart of the case is known as the 'independent state legislature' theory – the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without interference from state courts. Proponents of the theory point to the Constitution’s elections clause, which gives state legislatures the power to set the 'Times, Places and Manner of holding Elections for Senators and Representatives.'"

"Then-Chief Justice William Rehnquist was an early proponent of the theory. In a concurring opinion in Bush v. Gore, the 2000 case that halted the recount in Florida in the presidential election, Rehnquist (in an opinion joined by Justices Antonin Scalia and Clarence Thomas) outlined his view that the state court’s recount conflicted with the deadlines set by the state legislature for the election."

"The issue returned to the Supreme Court in 2020, when the justices turned down a request by Pennsylvania Republicans to fast-track their challenge to a Pennsylvania Supreme Court ruling that required state election officials to count mail-in ballots received within three days of Election Day. In an opinion that accompanied the court’s order, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) suggested that the state supreme court’s decision to extend the deadline for counting ballots likely violated the Constitution."^[31]

Outcome

In a 6-3 opinion, the court held that it had jurisdiction to rule in the case, regardless of whether theNorth Carolina Supreme Court reversed its original decision (referred to asHarper I) that the state's congressional district boundaries violated the state constitution.^[32] The court's opinion stated, "This Court has jurisdiction to review the judgment of the North Carolina Supreme Court inHarper I that adjudicated the Federal Elections Clause issue...The North Carolina Supreme Court’s decision to withdrawHarper II and overruleHarper I does not moot this case."^[32]

The court alsoaffirmed the initial decision of theNorth Carolina Supreme Court which overturned the state's 2021 congressional map, holding that "State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause."^[32] Although the state supreme court later reversed its decision, the court upheld the state court's authority to decide whether the district boundaries complied with state law. Chief JusticeJohn Roberts delivered the majority opinion of the court.^[32]

Opinion

In the court's majority opinion, Chief JusticeJohn Roberts wrote:^[32]

“	The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections...When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review. The precedents of this Court have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution. The argument to the contrary does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Thus, when a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the state legislature’s exercise of power.^[7]	”
—Chief JusticeJohn Roberts

Concurring opinion

JusticeBrett Kavanaugh filed a concurring opinion.

In his concurring opinion, Justice Kavanaugh wrote:^[32]

“	I join the Court’s opinion in full. The Court today correctly concludes that state laws governing federal elections are subject to ordinary state court review, including for compliance with the relevant state constitution. Ante, at 15, 26, 29. But because the Elections Clause assigns authority respecting federal elections to state legislatures, the Court also correctly concludes that “state courts do not have free rein” in conducting that review. Ante, at 26. Therefore, a state court’s interpretation of state law in a case implicating the Elections Clause is subject to federal court review. Ante, at 26–30; see also Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 76–78 (2000) (unanimously concluding that a state court’s interpretation of state law in a federal election case presents a federal issue); cf. Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___, ___, n. 1 (2020) (KAVANAUGH, J., concurring in denial of application to vacate stay) (slip op., at 9, n. 1). Federal court review of a state court’s interpretation of state law in a federal election case “does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures.” Bush v. Gore, 531 U. S. 98, 115 (2000) (Rehnquist, C. J., concurring).^[7]	”
—JusticeBrett Kavanaugh

Dissenting opinion

JusticeClarence Thomas filed a dissenting opinion, joined by JusticesNeil Gorsuch andSamuel Alito as to Part I.

In his dissent, Justice Thomas wrote:^[32]

“	This Court sits “to resolve not questions and issues but ‘Cases’ or ‘Controversies.’” Arizona Christian School Tuition Organization v. Winn, 563 U. S. 125, 132 (2011); see U. S. Const., Art. III, §1. As a corollary of that basic constitutional principle, the Court “is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.” St. Pierre v. United States, 319 U. S. 41, 42 (1943) (per curiam). To do so would be to violate “the oldest and most consistent thread in the federal law of justiciability.” Flast v. Cohen, 392 U. S. 83, 96 (1968) (internal quotation marks omitted). The opinion that the Court releases today breaks that thread. It “affirms” an interlocutory state-court judgment that has since been overruled and supplanted by a final judgment resolving all claims in petitioners’ favor. The issue on which it opines—a federal defense to claims already dismissed on other grounds—can no longer affect the judgment in this litigation in any way. As such, the question is indisputably moot, and today’s majority opinion is plainly advisory. Because the writ of certiorari should be dismissed, I respectfully dissent.^[7]	”
—JusticeClarence Thomas

Text of the opinion

Read the full opinionhere.

October term 2022-2023

See also:Supreme Court cases, October term 2022-2023

The Supreme Court began hearing cases for the term on October 3, 2022. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.^[33]