Is the theory a threat to democracy, or true to the Constitution?
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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- Brittney Griner, the WNBA star who was held for months in a Russian prison, was released on Thursday in a one-for-one prisoner swap for international arms dealer Viktor Bout. (The swap)
- The state of Indiana is suing TikTok, alleging the platform is deceiving consumers about its content and data security. (The lawsuit)
- Peru swore in Vice President Dina Boluarte as its new president after the impeachment and arrest of Pedro Castillo. Boluarte becomes the first female leader of Peru. (The ceremony)
- On the heels of a Senate victory in Georgia, Democratic Majority Leader Chuck Schumer will be formally voted in for another two years as Senate leader. (The celebration)
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Moore v. Harper. On Wednesday, the Supreme Court heard oral arguments in a test of the so-called "independent state legislature" theory, or ISL, which is the idea that the Constitution gives state legislatures unfettered authority to regulate federal elections, with little to no interference from state courts. According to SCOTUSblog.com, depending on how the Supreme Court rules, the case could upend federal elections nationwide by eliminating virtually all oversight of those elections by state courts.
The case came before the Supreme Court from North Carolina, where Republicans had created a gerrymandered map that was expected to produce 10 GOP victories in the state's 14 House districts.
The State Supreme Court (with a 4-3 liberal majority) voted along ideological lines to invalidate the map, citing free elections and equal protection provisions of the state constitution. After the map was thrown out, the trial court appointed three experts to redraw and implement a new map, which led to Republicans and Democrats splitting the districts seven apiece in the 2022 midterms.
North Carolina Republicans challenged that map, asking the Supreme Court to put it on hold and implement the map they had drawn. The court declined, but agreed to hear oral arguments in the case.
In today's issue, we'll be referring to Timothy Moore and the legislators (the North Carolina Republicans advancing ISL) and Rebecca Harper, North Carolina and the state (Harper is a North Carolina voter, and the state is led by a Democratic governor and attorney general).
Moore and the legislators point to two clauses in the Constitution. The first, Article I's elections clause, says the time, place and manner of congressional elections “shall be prescribed in each State by the Legislature thereof.” The second, Article II's electors clause, says states can appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.”
Using these two clauses, proponents of the ISL theory argue that under the plain text of the Constitution, state courts are not authorized to supervise how legislatures run elections for both Congress and the presidency. If the framers had wanted state courts or other entities to play a role, they would have given power to "each State," but they do not. They also note that it was very rare for state courts to strike down congressional maps in the country's first few decades.
Meanwhile, opponents of the theory say the clause was never understood, even at the time of the founding, to hand unchecked authority to state legislatures. North Carolina argues that the legislature has never claimed "the power to prescribe federal-election regulations that violate the State’s constitution and are immune from judicial review.” Challengers of the original gerrymandered map say it was universally understood that the state legislature was created by the state constitution, and therefore the legislature's laws must comply with that constitution and are subject to judicial review by the state’s courts.
North Carolina argues that the Supreme Court has reinforced this idea in numerous cases over the last century, repeatedly making it clear that state courts have the authority to consider challenges to election law. The state says it is "inconceivable" anyone would have understood the U.S. Constitution to bar state courts from enforcing the state constitution, or that it intended to allow state legislatures to run elections with no oversight by state courts.
On Wednesday, during oral arguments, the justices seemed skeptical of Moore's independent state legislature theory. While a few conservative justices seemed receptive to parts of the theory, it was not clear there was a majority to endorse it even on narrower grounds that would preserve a role for state courts to enforce state laws.
Because the Supreme Court ruled in 2019 that federal courts can no longer hear partisan gerrymandering cases, state courts retain the power to hear those challenges. If the Court were to endorse the theory, state legislatures would have near total control of drawing congressional maps.
Today, we're going to take a look at some arguments from the left and right about this case. Then my take.
What the left is saying.
- Many on the left frame this case as an existential threat to democracy and how our elections are run.
- Some observe that the conservative justices seemed quite skeptical of the theory in oral arguments.
- Others suggest the Supreme Court endorsing ISL could allow its supporters to upend the 2024 election.
In Vox, Ian Millhiser said it is "potentially the biggest threat to free and fair elections in the United States to reach the Supreme Court in my lifetime."
“The argument for the ISLD is deceptively simple, and can be summarized in three sentences: The Constitution says that the rules governing federal elections shall be made by each state’s ‘legislature.’ A governor, a state supreme court, or a state constitution is not the ‘legislature.’ Checkmate, libs. The problem with this argument is that, at least at the time when the Constitution was drafted, and popularly elected legislative bodies like the US Congress were a relatively new innovation, the word ‘legislature’ did not mean ‘the elected body of men and women who make up the House and Senate.’ It meant, as the Supreme Court explained in Arizona State Legislature, ‘the power that makes laws.’ And that power can be shared,” Millhiser wrote. “Just as the US president plays a role in making federal laws through their veto power, so too can states allocate that legislative power among their various branches of government.
“Davis confirmed that this lawmaking power may be given, in part, to the people of the state as a whole through a referendum process,” he added. “Smiley confirmed that a portion of the legislative power may be wielded by a state governor through his or her veto power. Arizona State Legislature confirmed that a portion of this power may be given to a bipartisan commission. Indeed, if you doubt this definition of the word ‘legislature,’ I encourage you to read the Moore petitioners’ brief. Specifically, I encourage you to read page 14 of their brief, where they quote four dictionary definitions of the word ‘legislature.’ Only one of these four definitions, from a dictionary published four decades after the Constitution was drafted, even plausibly could be read to support the ISLD.”
In The New Republic, Matt Ford said the independent state legislature theory had a "rough day" in court.
“At oral arguments on Wednesday, [Justice Amy Coney] Barrett appeared deeply skeptical of the North Carolina Republicans’ approach to the independent state legislature theory, especially when it came to practical applications for the courts. At one point, the justices questioned David Thompson, who argued on behalf of the state lawmakers, about a 1932 case where the Supreme Court held that a governor’s veto didn’t violate the Elections Clause, which runs counter to the theory’s reading of that clause. Thompson tried to dismiss the gubernatorial veto as a mere procedural hurdle, which did not appear to persuade Barrett. The court’s three liberal justices were unsurprisingly hostile toward the theory... But even some of the conservative justices appeared uneasy with the theory as articulated by the state lawmakers.
“Kavanaugh remarked at one point that their version ‘seems to go further than Rehnquist in Bush v. Gore,’ referring to a concurring opinion by then–Chief Justice William Rehnquist during the 2000 election dispute,” Ford said. “As a concurring opinion, Rehnquist’s opinion is not binding precedent on the courts, but it has served as a touchstone of legitimacy for the theory over the last two decades. Kavanaugh is unusually familiar with that case because he worked on George W. Bush’s legal team at the time. So did Roberts, whose questions focused on narrower ways to resolve the case and may have signaled unease with the maximalist approach.”
Adam Pritzker and Lauren Popper Ellis said the case could help election deniers seize the White House in 2024.
"If taken to its radical extreme, this reading of the Constitution would give state lawmakers, not governors or state courts, authority over not only how the maps get drawn but also over all the rules about how federal elections are administered, how the votes get counted and even which candidate wins," they wrote. "If endorsed by the Supreme Court, the Independent State Legislature doctrine could open the door to giving state legislators the power to decide, for example, which presidential candidate will receive their state’s Electoral College votes regardless of how the people actually voted.
"In practice, we could see a rogue legislature, displeased with their state’s election results, spur manufactured chaos and delays and invoke the ISL as justification for them to step in and unilaterally send its own slate of electors to participate in the Electoral College vote for president — with no clear path for the state’s governor or courts to check their actions," they said. "Though the Elections Clause hasn’t been understood this way in the past, such a reinterpretation isn’t all that hypothetical. In the aftermath of the 2020 election, former President Donald Trump used ISL as the centerpiece of his efforts to convince Republican lawmakers in key states to overturn the will of their voters and declare him the winner... it didn’t work then, but if ISL gets the stamp of approval from the Supreme Court’s current rightwing supermajority, it might work in 2024.”
What the right is saying.
- The right is divided, with some arguing the Court should embrace the plain text of the Constitution and others saying that ISL has no legitimacy.
- Some say endorsing ISL could bring order to elections and allow the states to fully exercise their power.
- Others say the theory has no support in history or legal precedent.
The Wall Street Journal editorial board says the justices should endorse the theory and bring clarity before the 2024 elections.
“The dispute in Moore v. Harper involves a House redistricting plan passed in 2021 by the North Carolina Legislature,” the board said. “That map was invalidated by the state Supreme Court, which said it was a partisan gerrymander and therefore prohibited under the state constitution. The North Carolina constitution says nary a word about partisan gerrymandering. The state Justices instead cited clauses that guarantee ‘free elections,’ ‘a right to assemble,’ ‘freedom of speech,’ and ‘equal protection of the laws.’ The Pennsylvania Supreme Court did a similar trick in 2020, when it extended a deadline for mail ballots, citing a promise of ‘free and equal’ elections. But what’s unfree about a deadline? And if state judges can rewrite the election code like this, where does it end?
“We have great respect for federalism and the right of states to write their own constitutions, which is why Moore v. Harper isn’t an easy case,” they wrote. “But the Elections Clause is an exception, because its delegation of federal authority to state legislatures is explicit. This is what Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, was getting at when he wrote, in a 2000 concurrence to Bush v. Gore, that the Constitution limits the power of state judges over federal elections. The panicked reaction to Moore v. Harper is unconvincing. A legislature is the most democratic branch of government. How is it vital for democracy to let a state court rewrite a voting law passed by elected legislators? No matter the outcome in this case, there are federal guardrails, because state election laws must follow the U.S. Constitution and acts of Congress.”
In The Federalist, John Yoo and Robert Delahunty argue the writing of the Constitution is clear.
“As critics of the North Carolina Legislature repeat in their arguments in Moore, apparently, the Constitution’s use of the word ‘legislature’ means the people of a state, who are then free to delegate their power to draw districts anywhere they please,” they said. “They would have to concede that a state could transfer the power to draw districts not just from the legislature to an independent commission and not even just to a court but even to a single individual who might or might not be a government official. The problem with allowing a state to allow anybody to exercise authority over redistricting is that it reads the word ‘legislature’ out of the Constitution.
“If Article I, Section 4 had declared that the times, places, and manners of holding elections for Congress were to be governed by ‘the state’ rather than ‘the legislature’ of the state, the claim that state courts, governors, or even commissions could perform the redistricting function would make some sense,” they wrote. “But the framers carefully distinguished between states and state legislatures, governors, and even courts. In some places, such as defending a state from invasion or sudden attack, a state itself bears responsibility. But only state ‘legislatures’ can call for a constitutional convention, ratify proposed amendments, consent to their state’s division, and declare the manner of selecting presidential electors. Before the 17th Amendment, they also could appoint a state’s U.S. senators.”
Some conservatives were less supportive. In The Atlantic, former federal judge J. Michael Luttig said "there is absolutely nothing" to support the independent state legislature theory.
"That as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling. There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions. Indeed, there is overwhelming evidence that the Constitution contemplates and provides for such judicial review," he wrote. "Proponents of the independent-state-legislature theory argue that, because the elections clause does not assign this legislative role to the state governors and courts, the burden is on those who argue against the theory to come forward with compelling evidence that the Framers intended state courts to review state-legislative election laws.
“But that’s to reverse the burden of proof. Because there is no evident support at all for the theory, the burden instead is on those who argue for the theory to come forward with compelling evidence from the text, structure, or design of the Constitution, or from the history at the time of the framing or founding, that confirms that the Constitution conferred on the state legislatures judicially unreviewable authority to redraw congressional districts,” Luttig said. “The proponents of the theory have not carried this heavy burden to date, and they cannot possibly carry this burden in Moore v. Harper.”
Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a paying subscriber, you can also leave a comment.
- I feel more strongly about this than pretty much any other Supreme Court case we've ever covered.
- I think the independent state legislature theory is ahistorical and very dangerous.
- Fortunately, it does not look like it got a warm reception.
In the last few months, we've covered a number of Supreme Court cases. Yesterday, we covered the same-sex wedding case from Colorado, where I argued that the right's hypothetical case was a winner but the actual case should be thrown out since there was no live conflict. Last week, we covered the Indian Child Welfare Act, which I said was the hardest Supreme Court case I've ever written about and essentially punted on my own opinion, but rooted for a narrow ruling in "the right's" favor. In early November, I covered race-conscious admissions, and I argued that while I wasn't a fan of race-conscious admissions, the case wouldn't fix universities no matter how it went, and "the left" had precedent and the law on their side.
I recap all of these in hopes of reminding you that while I'm generally all over the place on our daily debates, I'm especially torn when it comes to Supreme Court litigation, with its high degree of nuanced specificity and strong competing arguments.
And I do that hoping that what I'm about to say comes with a higher degree of credibility:
The independent state legislature theory is bonkers.
It isn't just totally divorced from the historical record, centuries of precedent, and common sense, it is an intentional redefinition of language that has been clear to every generation of Americans before us, all the way back to the founders. In even the most plausible scenarios, embracing this theory would cause a high degree of chaos, make our elections much more difficult to administer, and take a tremendous amount of power away from voters. It would make us less democratic and less able to fix everything about our election system that is already poisonous and broken.
The obvious, common sense part of this is that nobody in their right mind really believes a state court has no jurisdiction over the state legislature's lawmaking in any matter, including elections. The State Supreme Court in North Carolina ruled that North Carolina's map violated the state constitution because it quite obviously did. And they prevented a highly gerrymandered map that is part of the scourge Democrats and Republicans are participating in across the country. Without that check in place, we'd have more and worse gerrymandering than we already do.
This outcome of an “independent legislature” is obvious. Legislators have a strong incentive to create election laws that benefit them politically. Our entire system is based on a premise of checks and balances, so it makes sense that we would not hand over election lawmaking exclusively to the legislature, who could (and already do) then make laws that benefit their odds of staying in power. This is why state courts do (and should be able to) intervene.
The historical element of this is almost as clear. The petitioners’ main argument involves a historical document called the "Pinckney Plan," which purportedly refers to "each State" and its role in administering elections, but which was changed in the final draft of the Constitution. This, they argue, is proof that the framers once considered involving the state in administering elections but ultimately decided to specifically and exclusively give that power entirely to the legislature. There is one problem: The Pinckney Plan is fake history.
I know that sounds hyperbolic, but I don't know how else to say it accurately. Historians from across the political spectrum describe it as an entirely discredited document that was put in the historical record not at the time the Constitution was drafted but some 30 years later. The story of how a fake document became a key element to a case that is now being lent credence in front of the Supreme Court is a frustrating one, but if you have the time you can read it here. All you really need to know is that it’s a product of one man wanting to take credit for the Constitution’s ideas, and that the Framers had a deep distrust of state legislatures, explicitly voted to limit their power over state elections, and never ever would have supported the idea of allowing them to act without judicial review.
The potential consequences of all of this are frightening. Many of the commentators above have already explained how embracing such a theory could allow partisan legislators to undermine our elections even more than they already have with gerrymandered or illegal maps which could only be restrained by federal courts. This alone would create chaos, as it would mean the Supreme Court and federal courts would then be the venues for election challenges specific to individual states.
And that’s not even the worst practical implication. As North Carolina's lawyers argued, advancing this argument would mean state constitutions could not impose limits on laws that govern federal elections. In practice, this means the state could strike down a state election law but not a federal one. What happens if a state court invalidates a law for state elections but not federal elections? States would have to run two separate elections with two separate sets of rules. No longer would you go vote for your senator (federal office), governor (state office), and city council member (local office) all on the same ballot.
Even more infuriating is that this case shouldn't even matter in the first place, since North Carolina's legislature has already clarified that state courts have this power. Even if you took the ISL hook, line and sinker (which you shouldn't), North Carolina's General Assembly passed a law explicitly authorizing some state courts to hear redistricting lawsuits. In other words, even if the Court were to accept the ISL argument, Moore should still lose the case because the state court was simply exercising the power the state legislature gave them.
The good news is that Moore’s challenge is likely to fail. While I find it deeply concerning that there are conservative justices on this court even considering this argument, there is plenty of dissent. Leaders at the conservative Federalist Society have lambasted the idea. Benjamin Ginsberg, a longtime Republican idol and one of the top Republican election lawyers in the country, said the theory would “create untenable legal uncertainty around elections." Judge Luttig, cited above, is another conservative legal giant who took the time to deconstruct the truly stunning bad-faith arguments behind this case.
And, even better, the Court itself looks unlikely to embrace any broad version of the independent state legislature theory. That's all great news, not just for North Carolinians, voters and democracy, but for a Court that is in desperate need of restored credibility with the American public.
Your questions, answered.
Q: I wanted to get your thoughts on Elon and his relationship with free speech. I can't seem to gauge where he stands on the issue. On one hand, he exited Jim Baker from Twitter for his possible role in suppression of information "important to the public dialogue" (whatever that means). On the other hand, he has refused to reinstate Alex Jones' Twitter account, saying he has "no mercy for anyone who would use the deaths of children for gain, politics, or fame." Not saying I agree or disagree with either of these decisions but it appears inconsistent. Do you have a gauge on Musk's true relationship with free speech? Is what is deemed important to the public dialogue completely up to his own personal opinions and feelings?
— Nick from Edmond, Oklahoma
Tangle: I think content moderation is extremely difficult and should not be conflated with free speech. To me, free speech is the idea that people are permitted to express themselves absent of coercion or limitations from the government. Free speech also means everyone gets to participate in the public square, people are free not to speak, and people are free to live absent from certain kinds of harassment and abuse that prevent them from participating in speech.
Two of my favorite interviews about free speech I've ever done are with Grace Lavery and Jacob Mchangama. In these chats, we talk about the history of free speech but also the difference between government regulating speech and private platforms regulating speech.
To me, Musk is good for Twitter because he adds ideological diversity to an overwhelmingly liberal organization. But there are thousands of other thought leaders I'd point to that embody free speech worldviews better than he does. The inconsistencies you view are real. I think he is much more selfishly motivated than ideologically driven: Rather than follow a free speech north star, he’s on a path to make previous Twitter ownership look bad, hyper-woke progressives upset, and criticisms of himself disappear. Sometimes those goals align neatly with taking “free speech” stances. Sometimes they don’t. I mean, he's the guy who promised he'd bring comedy back to Twitter, then weeks later imposed permanent bans on parody accounts on the platform.
I like Musk for a lot of reasons, and I'm still holding out hope that my original prediction (that he will be good for Twitter long term) holds up, though things look pretty chaotic and broken right now. But when I think of people who embody consistent free speech ethics, he is not one of them.
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Under the radar.
Iran says it carried out the first known execution of a prisoner arrested during the protests that have swept across the country over the last few months. The protester was identified as Moshen Shekari and was accused of attacking a paramilitary guard with a knife. He was also accused of blocking a thoroughfare in Iran's capital and disturbing public order. The execution marks an escalation in the Iranian regime's crackdown on the protest movement, which started after the death of Mahsa Amini at the hands of the state's so-called morality police. The execution comes as some state officials have said they will bring an end to the morality police, whose overly strict enforcement of laws on women helped sparked the protests in the first place. The Washington Post has the story.
- 980. The number of Tangle readers who submitted their names to be interviewed in our forthcoming podcast series.
- Five. The number of those readers who will be chosen for the series.
- 96,613. The number of votes Raphael Warnock defeated Herschel Walker by, among 3.5 million voters, according to the latest tallies.
- Nine. The number of days until a partial government shutdown, unless Democrats and Republicans agree to a new deal to fund the government.
- $858 billion. The amount of money both parties have already agreed to spend on the defense budget in the next year.
- 10%. The increase in defense spending that budget represents.
Have a nice day.
The U.S. Senate has unanimously passed a bill that will restrict the private ownership of big cats like lions and tigers. The Big Cat Public Safety Act will stop people from keeping the animals as pets and prevent them being exposed to public petting and photo opportunities, BBC News reports. The efforts to curb such practices came on the heels of the Netflix special Tiger King and hopes to address the estimated 7,000 tigers living in the U.S. in zoos or private homes. If President Biden signs the bill, ownership of lions, tigers, leopards, and other big cat species will be limited to wildlife sanctuaries, universities and certified zoos. BBC has the story.
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