By Peter Mayer
Recently, the U.S. Supreme Court issued a decision that ensures, at least for the time being, the perpetuation of our democracy.
The central issue in Moore v. Harper was the question of whether state legislatures should have independent power, not subject to any judicial review from state courts, to set election rules that could be at odds with state constitutions. Such an interpretation would have had serious consequences regarding the continued functioning of our democracy.
The particular issue arose when the Republican majority in the North Carolina State Legislature drew highly partisan federal election district maps prior to the 2021 elections. These maps were rejected by the North Carolina State Supreme Court as an unconstitutional gerrymander by concluding that the maps, as drawn, violated the North Carolina Constitution.
Article 1, Section 4 of the U.S. Constitution says that “the times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” Based on this, the Republican petitioners argued that a state’s legislature is the only branch of government that matters in elections.
This argument, better known as the independent state legislature theory, would mean that only the legislature, which is always dominated by one political party or the other, can alter any legislative action on federal elections. Notably, it also would mean that rules which violate state constitutions could never be judicially reviewed by any state court of competent jurisdiction — a procedure which has been in place since Marbury v. Madison, a U.S. Supreme Court case decided in 1803.
A quick review of fundamental principles illustrates the issue. Article 1, Section 2 of the U.S. Constitution states that “representatives … shall be apportioned among the several states … according to their numbers [population]. The actual enumeration shall be made … every 10 years.”
After the filing of the census, state legislatures redraw congressional maps based on population changes as reflected therein. These changes are usually applied in a manner that favors whatever party controls the state legislature who draws the maps; i.e., gerrymandering.
If the maps are determined to violate the “one man, one vote” constitutionally mandated standard, a state court has the power to set the newly drawn electoral maps aside with a direction to go back to work and draw maps that don’t violate the state constitution.
In Moore v. Harper, this is exactly what the North Carolina State Supreme Court did, which the petitioners alleged they had no power to do. Put another way, they argued that there should be no state judicial review allowed.
In a recent 6-3 decision, the U.S. Supreme Court rejected the independent state legislature theory. They stated that the elections clause of the U.S. Constitution does not vest exclusive independent authority in state legislatures to set the rules of federal elections. It does not carve out an exception to the fundamental principle of state judicial review of state legislative actions as they pertain to federal elections.
In other words, the argument that state courts have no power to review election legislation is without merit.
Although the decision sounds hyper-technical, its importance cannot be overstated as it relates to American democracy.
Should it have been determined that there can never be state judicial review of an election matter, policies would follow that would endanger, for example, the right to a secret ballot, state-mandated independent redistricting commissions in Arizona and California, ranked choice voting in Alaska and Maine, and automatic voter registration in Michigan and Nevada. It would include the possibility of dismantling detailed regulations concerning voter list maintenance in Indiana and Iowa, and machine testing procedures in Montana and Ohio.
Essentially, finding the independent state legislature theory to be constitutionally acceptable would have allowed for election rules that violate a state’s constitution to be put in effect regarding federal elections, with no ability to facilitate corrective action. Specifically, there would be no state judicial remedy to undue unconstitutional and antidemocratic laws and rules passed by a state legislature.
As an example, subsequent to the 2020 census, state courts relying on their state’s constitution had rejected partisan electoral maps in Maryland, New York, North Carolina and Ohio. Had the petitioners in Moore v. Harper prevailed in the case, this exercise of judicial review would never be available again in states where legislatures didn’t allow for it.
All citizens who treasure this democracy should welcome this well-reasoned and pro-democracy decision by a Supreme Court that many have accurately characterized as highly conservative. It also is notable that the decision applies with equal force to any state legislature dominated by Democrats who try the same thing. In this sense, the decision is truly nonpartisan.
The attempt by the North Carolina State Legislature to preclude state judicial review of issues pertaining to federal elections was nothing more than an attack on the delicate checks-and-balances system between the three branches of government guaranteed by our Constitution and for which so many have fought since the founding of the Republic.
All citizens should understand that without judicial review on these matters, your right to have your vote counted together with the democracy we all treasure would have been put at significant risk — a risk that all freedom-loving Americans can ill afford.
Peter Mayer, a resident of Riverhead, is retired from the bench. He served as a justice of the New York State Supreme Court. Prior to ascending to the bench, Mayer specialized in defending criminal cases on the federal and state level in Suffolk County and throughout the country. He is presently in private practice.
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