Holder: Republicans Are Using the Supreme Court of the United States to Attack the Independence of State Courts

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Jena Doyle
Doyle@redistrictingfoundation.org

Holder: Republicans Are Using the Supreme Court of the United States to Attack the Independence of State Courts

Washington, D.C. —Today, the Supreme Court of the United States agreed to hear Moore v. Harper, an appeal filed by North Carolina Republicans that seeks to give state legislatures unchecked power to control congressional redistricting. The argument is based on the extreme right-wing independent state legislature (ISL) theory, which argues that state courts cannot invalidate laws enacted by state legislatures that pertain to federal elections. If Republicans succeed in this effort to absolve checks and balances in the states, it will undermine more than a century of precedent and wreak havoc on the American federalist system as we know it.

“The independent state legislature theory is a fringe legal theory based on a willful misinterpretation of the Constitution, and it is at odds with basic tenets of American government, including the separation of powers,” said Eric H. Holder, Jr., the 82nd Attorney General of the United States. “The goal of those embracing this radical theory is clear: to give control over our elections to extreme Republican state legislatures that are dominated by anti-democracy politicians who perpetuate and facilitate the Big Lie. 

“It should not be lost on the public that this is a desperate attempt to delegitimize the lawful decisions of neutral arbiters – state justices of both political parties who have provided a check against extreme laws enacted by gerrymandered Republican legislatures – all because Republicans did not like the end result,” Holder continued. “As shocking as this is, it is also unfortunately not surprising. The same political party that has called for the impeachment of state supreme court justices for holding them to account is now attacking the independence of state courts through the nation’s highest tribunal. All of this underscores the fact that every election matters, and it is incumbent upon all of us to protect the true independence of the judiciary, which is critical to our democracy.” 

In Moore v. Harper (formerly Harper v. Hall), North Carolina Republican applicants argue that the state court did not have the power to strike down the state’s congressional map as a  partisan gerrymander in violation of the state constitution. The applicants asked the U.S. Supreme Court to not only overrule the state supreme court’s substantive decision declaring that partisan gerrymandering violates multiple provisions of the North Carolina Constitution, but also to reinstate the 2021 congressional map that was found to be an unconstitutional partisan gerrymander by the North Carolina Supreme Court.

There is strong precedent against the independent state legislature theory: 

The United States Supreme Court has several times clearly rejected the idea that state courts cannot resolve legal challenges related to congressional redistricting.

For more than a century, the Supreme Court has repeatedly held that nothing in the Elections Clause negates a state court’s authority to strike down a congressional redistricting plan if it violates the state’s constitution. In Rucho v. Common Cause (2019), the Court explained that “[p]rovisions in . . . state constitutions can provide standards and guidance for state courts to apply” when reviewing the legality of congressional maps. In Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) – the case that challenged the authority of Arizona’s redistricting commission to draw the state’s congressional maps under the same reasoning – the Court held that “[n]othing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” These ideas are not new. Nearly a century ago, in Smiley v. Holm (1932), the Supreme Court stated that the Elections Clause does not “endow the Legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided,” which includes the ability of a co-equal branch of government to provide checks and balances.

These are only some examples of an extensive set of U.S. Supreme Court precedent that contradicts the extreme claims by North Carolina Republicans. 

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