Moore v Harper

In Moore v. Harper, the Supreme Court will decide December 2022 whether the North Carolina Supreme Court has the power to strike down the legislature’s illegally gerrymandered congressional map for violating the North Carolina Constitution. The legislators have argued that a debunked interpretation of the U.S. Constitution — known as the "independent state legislature theory” — renders the state courts and state constitution powerless in matters relating to federal elections.

The independent state legislature theory is the idea that the Constitution's Elections Clause vests exclusive authority to state legislatures for setting elections rules for Congress and the presidency, without oversight from state courts to ensure those laws comply with state constitutions.

The Elections Clause states: "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

A version of the theory was invoked in 2000 by then-Chief Justice William Rehnquist in his concurring opinion in Bush v. Gore, in which he wrote "the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies." In other words, there are limits on state courts' authority to alter rules for federal elections.

Rehnquist, whose opinion was joined by Justices Antonin Scalia and Clarence Thomas, wrote: "There are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them." Citing the constitutional provision providing for the appointment of presidential and vice presidential electors, Rehnquist said "the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance."The theory gained little traction in the wake of Bush v. Gore but was thrust into the spotlight when it was raised by former President Donald Trump and his allies as part of efforts to overturn the results of the 2020 presidential election.

The current dispute arose from the redistricting process undertaken by North Carolina's GOP-controlled General Assembly after the 2020 Census.

Under the congressional map adopted by the state legislature in November 2021, Republicans had an advantage for 10 of the state's 14 House seats. The state supreme court, however, rejected that map, finding it was an extreme partisan gerrymander that violated the North Carolina Constitution.

The General Assembly adopted new congressional voting boundaries, but that map, too, was rejected by a North Carolina trial court. Instead, it went on to approve a map created by a group of special masters and assistants and ordered the plan to be used solely for the 2022 election cycle. Under the court-drawn congressional map, Republicans were favored to win six seats to Democrats' four, with the four remaining districts more competitive, according to an analysis from the Campaign Legal Center.

A request by North Carolina Republican leaders to the state supreme court for it to pause use of the court-crafted maps was declined, so they asked the U.S. Supreme Court to intervene for the first time in late February.

The GOP lawmakers argued North Carolina's judiciary decided the "manner" in which the state's congressional elections will be held, usurping the power granted to the state legislature by the Elections Clause.

The U.S. Supreme Court, though, declined in early March to block use of the congressional maps adopted by the state court.

North Carolina Republicans returned to the high court again, filing a regular appeal that asked it to decide whether state courts have the authority to change regulations governing the "times, place and manner" of federal elections, a power they argued is given only to each state's legislature under the Constitution.

On June 30 2022, the court said it would hear the case.