NYCLA Signs Amicus Brief in Moore v. Harper

New York County Lawyers Association Signs Amicus Brief in Moore v. Harper

The New York County Lawyers Association (NYCLA), which represents 7500 attorneys, today issued the following statement:

NYCLA has signed an amicus brief in Moore v. Harper, perhaps the most important case of this year’s US Supreme Court term, to be argued on Wednesday December 7.  The case concerns the so-called Independent State Legislature Theory, which would strictly limit challenges to gerrymandering in state courts and could affect challenges to other legislative action with electoral consequences.   The end result could be the curtailment of judicial review which could block efforts to review laws that effectively disenfranchise voters through gerrymandering.

The facts in Moore v Harper demonstrate the need for judicial challenges to gerrymandering.  Moore concerns North Carolina’s congressional redistricting.  The largely undisputed evidence showed that showed that under the electorate map enacted by the state legislature even if Democrats received 50% of total votes for their congressional candidates, the map guaranteed they could not elect more than 4 out of 14 representatives.  The Republican-drafted map favored Republicans over Democrats compared to 99.9999% of all possible maps.

In the proceedings below, the North Carolina Supreme Court ordered a special master to re-draw the map.  The state appealed to the Supreme Court of the United States, arguing that it was unconstitutional under the federal Constitution for the state Supreme Court to intervene in this fashion.  The state argued that under the federal Constitution’s Election Clause, only the state legislature could act, and the state’s judiciary had no power to act.

This argument is based upon Article I, Section 4 of the Constitution, which provides that “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”  But this provision allows state legislatures to pass statutes setting forth polling hours and the like and has not previously been read to mean that ONLY the legislature can prescribe election rules, including limitations on gerrymandering.

Just seven years ago the Supreme Court essentially rejected this argument.   In Arizona State Legislature v. Arizona Independent Redistricting Commission 576 U.S. 787 (2015) the Court ruled that Article I, notwithstanding the mention of state “legislatures,” permitted the people of Arizona, via their state constitution, to do congressional redistricting through a redistricting commission independent of the state legislature created by a popular initiative. Arizona’s legislature had argued that Article I prevented the state from giving the power to draw congressional districts to an entity distinct from the state legislature itself.

Notably, in other contexts, the term “legislature” has been held to refer to the government in its entirety, including judicial review in the courts.  The First Amendment, for example, prohibits only “Congress” from discriminating on the basis of speech and religion. But courts have interpreted the First Amendment to apply to the federal government in its entirety, including the judicial and executive branches.

Proponents of the independent state legislature theory cite Bush v. Gore, in which Chief Justice Rehnquist referred to the theory in arguing that the Florida state court’s order that the ballots be counted ran past the state law deadline for certifying the election results.  He suggested that continued counting violated state law.  But Bush v Gore has limited application here. In Moore v. Harper unlike in Bush v Gore, the election law of the state at issue, enacted by that state’s legislature, specifically provides for judicial review of election law determinations.

It is important to consider the consequences if the Supreme Court adopts an extreme version of the Independent State Legislature Theory, ruling that state legislatures are not constrained by judicial review. With respect to gerrymandering, since the Supreme Court won’t allow federal courts to intervene, under Rucho v. Common Cause, 139 S. Ct. 2484 (2019), the Independent State Legislature Theory, by undermining state court review, would effectively ensure that there would be few remaining judicial restrictions on gerrymandering.

In addition to foreclosing judicial review of gerrymandering, an extreme version of the independent state legislature theory could limit judicial review if a state legislature directs an election board or a secretary of state not to certify a result.  Similarly, the independent state legislature theory could block judicial review if a legislature attempts to permit presidential electors to be designated consistent with the state popular vote and selects other electors instead. Such scenarios could profoundly undermine the process that the Constitution contemplates.

For these reasons and those set forth in its amicus brief in Moore v. Harper, NYCLA urges the Supreme Court to adhere to its precedent in Arizona State Legislature and to reject the Independent State Legislature Theory.   This theory, which has never been previously accepted by any court or state legislature in the nation’s history, would upend the Constitutional structure governing election law in ways that could undermine the fundamental principle of person man one vote enshrined in such decisions as Baker v. Carr, 369 U.S. 186 (1962).   

About the New York County Lawyers Association

The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender, and has a long history of supporting the rights of LGBTQ+ people. Since its inception, NYCLA has pioneered some of the most far-reaching and tangible reforms in American jurisprudence. For more information on NYCLA please visit nycla.org.

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