It was the best of times, it was the worst of times: Republicans had been able to maintain total control of the legislature in North Carolina, where the population is near evenly split between parties, for a decade. But the heated 2020 presidential race had turned election administration into a corrosive — and at times dangerous — partisan battleground, putting Democrats and voting rights activists on edge.
So when the state’s Republican Party tried to approve a heavily gerrymandered map, activists in the area gathered their ranks for a lengthy court battle to strike them down.
The clash will make it to the Supreme Court next term through Moore v. Harper — and thanks to an obscure legal doctrine introduced by the GOP, it could drastically reorganize the system of checks and balances in states across the country.
How did we get here?
After then-President Donald Trump claimed the 2020 election was stolen, state legislators ushered in a “tidal wave of restrictive voting legislation” to combat election fraud that didn’t exist — just in time for the next redistricting cycle.
The swirling “Stop the Steal” rhetoric — egged on by some state representatives — built momentum for Republicans in North Carolina to draw congressional maps that consolidated their majority.
So they did: On Nov. 4, 2021, the General Assembly passed new congressional maps that would have created a 10-4 split in their favor. If approved, the maps would have delivered Republicans 71 percent of the state in a tied election. Due to a 1996 state law, Democratic Gov. Roy Cooper had no power to veto.
North Carolina’s population is evenly divided between parties: 41 percent of the state identifies as Republican while 43 percent consider themselves Democrats, according to a Pew Research Center poll. Trump won the state with only 49.93 percent of the vote in 2020; Biden lost with 48.6 percent.
“It’s a microcosm of the country, almost a replica of the U.S.,” Dallas Woodhouse, a conservative political commentator and executive director of the South Carolina Policy Council, told Grid. “Swing areas in the suburbs, extremely loyal liberal Democrats in the metropolitan areas.”
The GOP’s effort to secure power in North Carolina goes back to 2011. Republican state legislators around the country undertook an ambitious gerrymandering plot that handed them the statehouses of key battleground states like Florida, Wisconsin, Pennsylvania and North Carolina. As a result, the General Assembly that had been overseen by Democrats since the ’90s has been under consistent Republican control for over a decade.
“We have seemingly been fighting against gerrymandered maps, both racial and partisan, every single year since the last redistricting cycle,” J. Sailor Jones, associate director of the nonpartisan voting rights group Common Cause North Carolina, told Grid.
Voting rights groups challenged the maps before three trial judges in January, but the panel upheld them. So they appealed the decision before the state’s Supreme Court, which struck down the maps in February for violating the fair elections, equal protection, free speech and freedom of assembly clauses of the state’s constitution.
By a 4-3 vote, the court found that the General Assembly’s maps violated several provisions in the state’s constitution by depriving voters of “substantially equal voting power on the basis of partisan affiliation,” the decision said.
After the loss, Republicans rallied: They needed a way to bypass the state judiciary that could also pass muster before the Supreme Court. Enter the “independent state legislatures theory” (ISLT).
What is the independent state legislatures theory?
The ISLT uses the Elections Clause of the Constitution to argue that state lawmakers should have more authority to oversee federal election administration without interference from state courts.
The constitutional clause in question states:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”
The theory’s proponents argue that this line only grants the legislature authority to review federal election rules. Woodhouse points out that the Elections Clause is the only relevant part of the Constitution that specifies who within a state (the “legislature”) has this kind of administrative power.
“The authority has to rest with somebody,” he told Grid, “And the authority rests under the U.S. Constitution with the legislature.”
But legal experts say the theory exploits the vague language of a clause that shouldn’t need further explanation.
“State legislatures are created by state constitutions,” Carolyn Shapiro, a constitutional law expert at the Chicago-Kent College of Law at Illinois Tech, told Grid. “They are part of state constitutions. So the idea that the Founders granted this power to the state legislature divorced from the existence of the constitution is bizarre.”
The theory first popped up in a few 20th-century election law cases before reemerging in 2000, when the Supreme Court weighed in on the presidential race between Republican George W. Bush and then-Democratic Vice President Al Gore. That December, the Supreme Court ruled that the recount in Florida violated the equal protection clause because the Florida Supreme Court didn’t have the authority to create a new election law. The decision handed Bush the victory.
Constitutional scholars have since denounced the ruling. “The Bush Court’s overeager decision to jump into the Electoral College controversy itself ran counter to text, structure, precedent and prudence,” Vikram David Amar, a constitutional law professor at the University of Illinois College of Law, and Akhil Reed Amar, a legal scholar at Yale Law School, recently wrote.
Then, for the most part, there was silence, save for a 2015 redistricting case out of Arizona that the Supeme Court struck down.
The independent state legislatures theory is back in a big way
Suddenly, it returned: After the covid-19 pandemic triggered a massive expansion in voter access, cases began popping up in battleground states like Wisconsin and Pennsylvania trying to reel it back.
“Republicans sued because they did not support these expansions, and the legal hook they used was that only the state ‘legislature’ may adopt these voting rules,” Joshua Douglas, an election law professor at the University of Kentucky, told Grid.
Douglas noted that the composition of the justices has changed dramatically since 2015, when the Supreme Court last examined the idea. “The makeup of the court means it is embracing many more theories from conservatives,” he said.
The ISLT is only the second right-wing legal theory to crop up in support of the Big Lie. The first was Trump lawyer John Eastman’s proposal that then-Vice President Mike Pence invoke the Electoral Count Act to call the election for Trump. He’d similarly tried to use a clause in the constitution with vague language to gain an advantage in the election process. It backfired.
But this case might not. Four justices — Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh — have already signaled their support for the ISLT. Ethan Herenstein, counsel with the Brennan Center for Justice’s Democracy Program, told Grid that the Republican-appointed members of the Supreme Court see this case as an opportunity to signal their support for the theory and elaborate on it further.
A decision siding with North Carolina’s GOP could turn the simmer of political tension leading to the 2024 race up to a boil. The election may not be close, and courts may not be called upon to resolve important issues that could affect the election outcome, but such possibilities aren’t out of the question.
Republican-led legislatures in battleground states like Wisconsin, Michigan, Georgia, Arizona and Pennsylvania could theoretically install their own electors during the next presidential election with fewer legal barriers.
But that’s not the point, according to Woodhouse. If the Supreme Court sides with North Carolina’s GOP, he said, the ruling would be narrowly focused on the issue of congressional redistricting.
“I think there’s a lot of pearl-clutching that we’re seeing,” Douglas told Grid. “It’s not about the electors. The case is about congressional districts.”
That depends on if lawmakers decide to play it fair. Given that Republicans control 62 state legislatures to the Democrats’ 36, the balance of power come election season could more easily be tipped in their favor.
And if the coming election looks anything like 2024′s or 2000′s — where declaring a winner comes down to one county in one state — the Supreme Court could decide the outcome.
“To be clear: The case would not allow a state to just award Electoral College voters to its preferred candidate after voting has occurred,” Douglas explained. “But it would let states more easily keep more power for itself to dictate voting rules without worrying about the constraints of the state constitution.”
Herenstein warned that no matter where the decision falls in 2023, the outlook is ominous. “The recent emergence of the [ISLT] theory is a strong indication of what ultimately lies behind it,” he said, “which is electoral chaos.”
Thanks to Alicia Benjamin for copy editing this article.