The Census: As required by the US Constitution (Article I, Section 2, Clause 3, as amended in Section 2 of the 14th Amendment), the number and location of every person in or of the USA is recorded every ten years. That’s the Census. It’s required so that the US Congressional districts can be shared fairly (apportioned ) among the states.
Apportionment: There are 435 Congressional seats to be shared. That number’s not in the Constitution. It’s in a federal law, the 1929 Permanent Apportionment Act. The Constitution says only that every state gets at least one Congressional Representative. After that, the Census Bureau uses a calculation method dictated by law to decide how many Representatives each state will be entitled to. The change goes into effect beginning with the Congressional election following the Census. Congressional elections are held every even-numbered year, and every seat is up for election. The count was done in 2020, the results, originally due at the end of 2020, came out in mid-2021. The maps needed to be ready in 2022.
Redistricting: Once they got the numbers, each state had to review the boundaries of their congressional district map, to adjust them to correspond to the movement of people over the previous decade; especially states such as California and North Carolina that had gained or lost seats in the U.S. Congress.
In California and a few other states, redistricting is done by a commission that is independent of the legislature, with guidelines that require that the district layouts focus on:
- Population equity: Each district should have close to the same number of people.
- Contiguousness’:
- No splintering: A district (especially one that has a majority of a minority, ethnic, or political group) or should not be split out into other districts, except in very limited circumstances.
- Compactness: All parts of a district should be connected to each other and include the closest populations - not bypass one area for others that are farther away
- Respect for existing subdivisions: Towns, neighborhoods, municipal areas, and groups that share social and economic interests (called “”Communities of Interest”) should be kept intact when district lines are drawn.
In most states, however, redistricting is still done by the legislature itself (or its committees), including in North Carolina. Which brings us to Moore v. Harper.
The NC Legislature’s map: It all started with a lawsuit in the Wake County North Carolina Superior Court, challenging the state’s congressional district map, adopted by the state legislature in November 2021. A number of NC voters and organizations argued that the map was a partisan gerrymander that violated the state constitution’s Free and Equal Elections’ clause. Multiple lawsuits were filed in the capital city of Raleigh against the leaders of the North Carolina legislature, claiming that the maps were gerrymandered, both by party and by race. Since Raleigh is in Wake County, NC, this went to the Wake County Superior Court.
In January, 2022, Wake County Superior Court decided that they could not interfere with the district maps. On the partisan gerrymandering, the court stated that: "Were we as a court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government." This decision was appealed to the North Carolina state Supreme Court.
In February 2022 the North Carolina Supreme Court, in a 4-3 ruling, decided that yes, the legislature’s map was indeed a partisan gerrymander that violated the state constitution’s Free and Equal Elections clause. They barred that map’s use for the 2022 elections.
The North Carolina Supreme Court’s map: The Court then adopted a new map, drawn by a team of outside experts.
Moore v. Harper begins: Protesting the NC Supreme Court’s dismissal of the legislature’s map, near the end of June 2022 members of the North Carolina General Assembly filed a request for judicial review to the U.S. Supreme Court. The Court granted the request for review on June 30, 2022. However, the Supreme Court always recesses from July 1 until the first Monday in October, so the case could not be heard until, at the earliest, one month before the 2022 election. As it happened, it was not heard before the November election, and the NC Supreme Court’s Congressional district map was used.
LWV joins in: On October 26, 2022, the League of Women Voters of the United States and League chapters from all 50 states and the District of Columbia filed a Friend of the Court brief in the Moore v. Harper case. The League’s concern was with the “"Independent State Legislature Theory” (ISLT), mentioned earlier. The League believed that, if adopted, ISLT would have far-reaching implications for the future of American democracy.
At the time, Virginia Kase Solomón, CEO of the League of Women Voters of the US, said: "Giving states unchecked power to set rules for federal elections is an assault on the American voter. Historically, state legislatures have enacted the most harmful and suppressive anti-voter laws; and pro-voter groups like the League have relied on the ability to fight them in state courts. The Independent State Legislature Theory is a dangerous, fringe ideology that leaves voters effectively defenseless from harmful election laws."
Carol Moon Goldberg, president, of the LWV of California, added: "California voters chose to create the California Citizens Redistricting Commission to ensure that voters, not politicians, pick their legislative representatives. The drawing of legislative and congressional districts by the people is an important part of democracy. The potential adoption of an Independent State Legislature Theory by the US Supreme Court threatens the Commission’s crucial work in safeguarding democracy."
In a press release at the time, the League went on to say:
“The League of Women Voters had serious concerns about this case because a ruling adopting ISLT would give state legislatures nearly unrestricted authority to set the rules for federal elections, prioritizing the ambitions of politicians over the American voter. Furthermore, if the Supreme Court condones this theory, it will undermine the role of state courts to protect voters when politicians create unconstitutional barriers to voting, draw unlawful voting maps, and invalidate direct democracy efforts like ballot initiatives.
"In creating the US Constitution, the framers were intentional about establishing a checks and balances system to disrupt any one branch of government from becoming too powerful," said Celina Stewart, chief counsel and senior director of advocacy and litigation at the League of Women Voters of the US. "Because state courts have been vested in the salient role of deciding disputes that govern our daily lives, any unraveling of this longstanding balancing would be a dangerous and historic blow to democracy as we know it. We implore the Court to rule in favor of voters and reject the Independent State Legislature Theory."
“As this case has massive implications for every state, the League of Women Voters amicus brief expresses the concerns of Leagues representing all 50 states and the District of Columbia. The League’s brief focuses on the practical, negative impacts that ISLT will have across the country. Specifically, the brief explores how implementing such a theory would create different election rules for state, local, and federal elections that would cause confusion for administrators and voters alike and would have a deleterious effect in maintaining free and fair elections.”
The US Supreme Court rules: On June 27, 2023, the US Supreme Court ruled, in a 6–3 decision, that Section 4 Clause 1 of the US Constitution (the Elections Clause) does not give state legislatures sole power over elections, rejecting ISLT (Independent State Legislature Theory). In a major victory for checks and balances and for the constitutional rights of voters, the US Court affirmed that the state court does have a proper role of judicial review of actions of the state legislature and that a state legislature’s authority over federal elections is not exclusive and independent.
Reaction to the Decision: Virginia Kase Solomón, CEO of the LWV-US said: “Every year, voters face attacks on their rights from state legislatures seeking more power for politicians over the will of the people. Today’s decision is a major victory for our democracy because it rejects the dangerous idea that state legislatures have free rein to determine the rules for elections in their states. We applaud the Supreme Court’s decision to reject the ISLT and affirm the voice of voters.”
"Our team is privileged to have had the opportunity to collaborate with the League of Women Voters and the Fair Elections Center in showing how ISLT would shatter election norms and processes that are central to the functioning of our democracy," said Meaghan VerGow, partner at O’Melveny & Myers LLP.
Jon Sherman, litigation director and senior counsel for Fair Elections Center said: "The theory advanced in Moore calls for a legal revolution that would chop up and alternate rules by type of election, ushering in chaos and confusion for poll workers and voters. In this dangerous moment for our democracy, the Supreme Court must be a steady hand."