The Extremely Muddled G.O.P. Logic Behind Moore v. Harper

“So, one, two, three,” Justice Elena Kagan said, somewhat brusquely, in the oral arguments in Timothy Moore et al. v. Rebecca Harper et al., a case that the Supreme Court heard on December 7th. She was reeling off the names of a few of the Court precedents that, she said, posed “a lot of problems” for the petitioners in this case. That was an understatement. Moore, the Republican speaker of the North Carolina legislature, and a number of his G.O.P. colleagues had brought it forward to block a redrawing of congressional-district lines that a state court had ordered after it had thrown out their own, very partisan, map. (The respondents’ brief noted that a lower court had found that the enacted map was “more carefully crafted to favor Republicans than at least 99.9999%” of all possible maps.) The theories that the G.O.P. legislators adopted as a means to that gerrymandering end don’t only fly in the face of the decisions that Kagan cited. They also push an extremist vision of the power of state legislatures that, if adopted, would put extraordinary stress on future elections and on democratic institutions.

The story of Moore v. Harper is one of a fringe legal theory that managed to get a hearing in the Supreme Court because it seems to offer a quick fix for certain very specific, recent Republican grievances, among them maps that they don’t like and expanded mail-in voting, which they feel makes it easy for the wrong people to vote. The fact that the case offers an even quicker way of breaking a lot of things, including dozens of state constitutions and the Electoral College, was secondary. From one perspective, it’s shocking that, in past rulings, three Justices—Samuel Alito, Neil Gorsuch, and Clarence Thomas—have expressed not only willingness but eagerness to take on such a far-out case, as has, to a somewhat lesser extent, a fourth, Brett Kavanaugh. It’s shocking that any Justices did. But then a similar chain of reasoning led many Republicans to fall in behind Donald Trump, the wild man who they thought would deliver what they wanted.

At the center of Moore v. Harper is what’s known as the independent-state-legislature doctrine, or I.S.L. The Constitution gives state legislatures the power to set the “times, places, and manner” of federal elections; this is why different states’ polls are open for different hours, and why their rules for absentee ballots vary. But, since the nation’s founding, it’s been quite clear that this provision doesn’t make the legislatures free-floating election-designing commandos. State legislatures operate within bounds set up by the state constitutions that, in turn, design those bodies. And state courts can make sure that they do so. The petitioners in Moore, as their lawyer David Thompson put it, in an exchange with Justice Ketanji Brown Jackson, reject “the whole premise” underlying that position. Thompson argued that, with respect to elections, state legislatures are on a special mission for which they have been deputized directly by the federal government (so, indeed, commandos) and don’t have to listen to anyone else in their states. What this theory implies, though, is that legislatures could make changes that quite radically affect voter access; they could also exert partisan, and perhaps arbitrary, control over how a state apportions its Presidential electors—something that could add to the temptations of anyone looking to interfere in the 2024 elections.

The oral arguments did not go all that well for the petitioners. The problem that emerged was twofold. First, of course, was the extremism of the legislators’ position, which Thompson did little to conceal or mitigate. There was an awkward exchange between Thompson and Gorsuch, who was trying to cue the lawyer up to explain that he was really responding to problems that occur when a state court overreaches or “annuls the law outright”—a familiar conservative complaint (and one that harks back to a concurrence by Chief Justice William Rehnquist in Bush v. Gore, which I.S.L. advocates often cite). “I, I, I actually think differently,” Thompson said. “Or am I wrong about that?” Gorsuch asked quickly. “Yeah, I think, respectfully, you are,” Thompson said. He explained that the G.O.P. legislators’ position was that even assuming that what the North Carolina court had done in rejecting their district map was entirely correct and proper as a matter of state law—that it didn’t overreach at all—“it is then still impermissible because it is imposing a substantive limitation on the state legislature.”

Thompson’s answers made it hard to refute an observation by Neal Katyal, the lawyer representing Harper and other individual voters affected by the redistricting, that he wasn’t sure that he’d “ever come across a theory in this Court that would invalidate more state-constitutional clauses.” Twenty-seven constitutions, he said, have their own election clauses; thirty mention the right to a secret ballot. And all of them refer to rights such as equal protection, speech, and assembly, any of which could have an effect on election law. (In the litigation that led to Moore, the North Carolina court found that the map violated multiple provisions of the state constitution, including its promise of “free” elections and equal protection.) Similarly, Donald B. Verrilli, Jr., who represented the North Carolina state officials in the oral arguments, cited state-constitutional provisions for “absentee voting, voting by the military, voter I.D.” These, too, will presumably fall by the wayside if the Moore petitioners prevail. Justice Jackson also pointed out, repeatedly, that the idea of a state legislature operating on its own, apart from a state constitution, was a mishmash, given that the state constitutions create the legislatures. (The federal Constitution doesn’t even set a standard template for state legislatures; this is why, for example, Nebraska can have a unicameral legislature while other states have bicameral ones.)

The second part of the problem for the petitioners was the clumsy and incoherent way that the case was structured, which appeared to frustrate even some Justices who might be inclined to support it. Chief Justice John Roberts’s opening question, for example, noted that the G.O.P. state legislators, for all their talk of the legislature’s power, accept that a state governor has the power to veto election laws. “The governor is not part of the legislature. Why is—why, why do you concede that point?” Thompson’s answer was that he was not there to “relitigate” Smiley v. Holm, the 1932 Supreme Court case—one of the three precedents that Kagan mentioned—which confirmed that gubernatorial veto power. But, in fact, he was there to relitigate it, and other precedents, too.

Thompson tried to fill the logic gap with hand-waving about a cloudy distinction between “procedural” and “substantive” limits, which Justice Amy Coney Barrett, in particular, seemed to find unsatisfying, if not mystifying. Maybe Thompson decided that appearing as if he weren’t throwing out a lot of precedents would support the notion that his side’s outlandish reading of the Constitution was quite normal. Or maybe his clients had done a head count of key Republican governors and decided that they were happy with them playing a role. Either way, it was an embarrassing mess. It could be that the Republic is saved from some of the potential anti-democratic consequences of the case thanks to the plain incompetence of those pushing for them. We’ve seen that phenomenon before, in the White House of the previous Administration. In that way, too, Moore v. Harper is an apt parable for the choices that the Republican Party has made in the Trump era. In the oral arguments, anyway, it looked like the Four Seasons Total Landscaping of legal cases.

A case as muddled as this one requires its supporters to undergo multiple contortions. For example, the most conservative Justices have made a show, in cases including Dobbs v. Jackson Women’s Health Organization, of their deference to history, even if they often read that history selectively or incorrectly. But, in order for this case to make any sense, Justice Sonia Sotomayor said, Thompson would have to “rewrite history” wholesale. As Katyal put it, “Petitioners say for two centuries nearly everyone has been reading the clause wrong. That’s a lot of wrong and a lot of wrong past elections.” He added, “Justice Thomas, if I may, in two decades of arguing before you, I’ve waited for this precise case because it speaks to your method of interpretation, which is history, and the founding evidence here is overwhelming”—overwhelming, that is, in speaking against the G.O.P. legislators’ view. Thomas, seemingly unabashed, later made a joke about “waiting thirty years” to ask Katyal a question. (“Drumroll,” Roberts said.)

The exchanges about history were another indication that Moore was driven less by a long-term ideological project than by a short-term opportunistic power calculation. In one baffling moment, Alito, who clearly and querulously supported the legislators, seemed to be saying that the toleration, in eighteenth-century Britain, of “rotten boroughs”—Parliamentary constituencies in which few people lived, and so local power brokers could handpick M.P.s—somehow provided positive support for their case. “But that was a bad thing,” Verrilli said. It was bad for the British, maybe, but, in Alito’s view, good for G.O.P. legislators.