Why NC legislators are arguing a legal theory that could upend US democracy

House Speaker Tim Moore, R-Cleveland, and Senate President Pro Tempore Phil Berger, R-Rockingham, tried out a legal theory in 2020 elections litigation that had the potential to change the balance of power between the state legislature and the executive branch. 

It failed at every level of state and federal courts.

Now, they’re trying to apply that theory again with a petition to the U.S. Supreme Court, this time over a disagreement with the other branch of government, the state courts.

The argument, called the independent state legislature theory, takes the position that since Article 1 Section 4 of the U.S. Constitution says, “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” the state legislature should be able to write federal election law without check by the other branches of state government.

Since the state Supreme Court blocked partisan gerrymandering on state constitutional grounds, this legal theory is central to North Carolina legislative Republicans’ hopes of gerrymandering the state’s U.S. congressional maps, assuming they control the state legislature after the 2022 elections.

But there are problems with the argument, according to Carolyn Shapiro, a law professor at the Chicago-Kent School of Law who researched the reemergence of the once-obscure theory in 2020.

“It makes no sense and it will cause chaos,” Shapiro said. 

Though the lay reader might think it’s pretty clear — legislature means legislature — Shapiro points to legal scholarship over the last two years that shows the founders’ original meaning of “Legislature thereof” included the legislative mechanisms and checks in a state, including the executive and judicial branches. Reading the line to mean only state legislature, as Moore and Berger do, is a misunderstanding of the constitutional text, she said.

That’s also the position the U.S. Supreme Court came to in the 2015 Arizona Independent Redistricting Commission case, in a 5-4 decision. It then referenced that decision favorably in its 2018 Rucho case, meaning the high court would have to overturn or at least evade recent precedent to rule in Moore and Berger’s favor. 

But in the last four years, the court has become more conservative, now with a 6-3 edge over liberal justices, and two of the new conservatives have shown interest in the independent state legislature theory. 

Should a majority of the justices now accept Moore’s and Berger’s interpretation, state courts would no longer have the authority to review federal redistricting, or possibly any federal election law passed by state legislatures. It depends on if the high court takes the case and how much of Moore and Berger’s arguments it adopts.

But even in a narrow ruling, it would be hard for the U.S. Supreme Court to limit the consequences to just map-drawing, according to Derek Muller, a University of Iowa law professor. 

“Once you open that door, you never know how far it can go or who could close it in the future,” Muller said. 

Why only Republicans are pursuing the theory 

Though only Republicans have brought claims based on the theory in this century, there’s nothing inherent to the argument that should favor one political party over the other, Shapiro said. 

In New York, where Democrats control the state legislature and governor’s mansion, state courts blocked the gerrymandered political maps. In California, Democrats who had gerrymandered the state’s maps in their favor gave up the power to draw maps to an independent commission. 

In theory, Democrats in those states could benefit from a concentration of power should the independent state legislature become the law of the land. But they haven’t brought the lawsuits, instead treating the theory as if it’s Pandora’s Box, Muller said. 

Neither Moore nor Berger responded to questions for this story, including why they are bringing the lawsuits or whether they are worried about unintended consequences of the legal theory.  

But examining the political landscape of swing states like North Carolina, Pennsylvania and Wisconsin, the places where the theory has emerged, helps to explain why only Republicans are making legal arguments that could upend how democracy functions in the country. 

Should the U.S. Supreme Court accept this argument, the current political valence seems to favor Republicans because they control 30 state legislatures, including seven of the 12 states with split legislatures and executive branches. Those seven include the key swing states of Michigan, North Carolina, Pennsylvania and Wisconsin. 

By sheer numbers, that means there are more states where Republicans could pass federal election laws in their favor, either by gerrymandering or restricting access to the vote using laws like photo voter ID, without the usual state court checks. 

But this approach is shortsighted, Shapiro said. 

“Both parties are going to use it to what they believe is their advantage,” Shapiro said. “I don’t think that there’s anybody who’s going to say, ‘Oh, you know, we’re just going to unilaterally disarm.’”

Pandemic, split governments and theory resurgence

The specific context of the pandemic and political landscape in 2020 helped trigger the rise of the independent state legislature doctrine among Republican legislative leaders in several states. 

Suddenly, in early 2020, with the spread of a new worldwide disease of unknown infectiousness or deadliness, elections officials were no longer sure how to run elections. COVID-19 came to North Carolina on March 3, 2020, the same day as the statewide primary. 

That timing let North Carolina evade the initial confusion that beset most other states’ primaries, which came later in the year, but it also set up legal fights. Over the summer, the legislature passed a raft of bipartisan election reforms, most of them temporary, to help the election run smoothly during a pandemic. 

But advocacy groups still had concerns, mostly around the anticipated explosion in the use of absentee-by-mail voting, so they sued the state, arguing the process at the time would prevent thousands of legitimate ballots from being counted. 

Republicans in North Carolina opposed those proposed changes, and this dynamic played out nationwide. 

Executive-branch agencies, like North Carolina’s Board of Elections, made administrative changes to election procedure under states of emergency or through legal settlements. State courts also made changes, either by blessing legal settlements, as was the case in North Carolina, or by interpreting state constitutions to require changes, as happened in Pennsylvania. 

This was outside the regular legislative scheme states usually followed, Muller said. In places like North Carolina, there was suddenly a new election battlefield laid between old foes — Republican-controlled legislatures and Democrat-controlled executive agencies and Democrat-controlled courts. 

Faced with last-minute changes to election procedure, legislatures didn’t have time to call new sessions and pass their own laws, assuming they could even get around a gubernatorial veto. 

So to stop legal changes, such as extending the date by which by-mail ballots could be accepted if they were legally voted before Election Day, Republican legislators had to turn to the courts. 

In North Carolina, Moore and Berger tried to intervene in a case the State Board of Elections settled in state court. The judge rebuffed them and approved the settlement. So Moore and Berger appealed, but a strong majority of Democratic justices controlled the North Carolina Supreme Court. 

To win, the legislators would likely need a way into federal courts, a difficult task because the settlement was a matter of state law. To get there, North Carolina’s legislative Republicans needed a federal hook. 

In these kinds of cases, there aren’t many, according to Muller. That’s what made the independent state legislature claim attractive. That, and Justice Brett Kavanaugh, appointed by then-president Donald Trump, had already signaled in a case from Wisconsin earlier that year he was open to the argument. 

So Moore and Berger argued simultaneously in state and federal courts that the State Board of Elections didn’t actually have the authority to agree to the legal settlement because it changed state law, something only the legislature should be able to do. 

Trump’s campaign, the North Carolina Republican Party, the national Republican senatorial and congressional committees also sued in federal court with the same arguments, showing North Carolina was at the tip of a national Republican spear seeking a way around the limitations of state courts. 

Both sets of cases got up to the U.S. Supreme Court, which declined to take them up. This time, another Trump appointee, Justice Neil Gorsuch, indicated he was interested in the independent state legislature theory. 

Then the 2020 votes were in and it slowly became clear Joe Biden won the election. 

But the theory did not vanish. 

Instead, Republican attorneys general from 18 states tried to use it to block certification of the presidential election, feeding into lies from Trump that the election had been stolen. Even after Trump’s insurrectionists raided the Capitol, 147 Republican members of Congress voted to overturn the election results on the ungrounded claims that non-legislative changes could have introduced opportunity for fraud. 

Moore and Berger try again 

The fight over redistricting gave Moore and Berger another shot at pushing the independent state legislature doctrine to the U.S. Supreme Court. 

Back in Nov. 2021, the North Carolina legislature passed political maps…