Supreme Court points to a possible Moore v. Harper compromise, and it’s not a good one

Wednesday’s oral arguments offered a glimpse into how U.S. Supreme Court justices might rule on a case that has been called “ahistoric” and “dangerous.” It didn’t paint as catastrophic a picture as some had feared, but it wasn’t especially promising.

The case, Moore v. Harper, stems from a redistricting dispute that played out in North Carolina’s courts earlier this year. Republican legislators are arguing that the N.C. Supreme Court overstepped its authority when it struck down the legislature’s maps and appointed a group of special masters to draft an interim congressional map for use in the 2022 elections.

Now, the GOP wants the Supreme Court to weigh in on what’s called the independent state legislature theory, which posits that state legislatures have nearly unfettered control over the administration of federal elections. Supporters of the theory say that the U.S. Constitution prevents state courts from intervening in the congressional redistricting process, even if it violates state law or state constitutions.

Three of the court’s conservative justices — Clarence Thomas, Neil Gorsuch and Samuel Alito — have expressed support for an aggressive interpretation of the theory in the past — and seemed sympathetic to it in oral arguments. Such a broad interpretation could give state legislatures unchecked authority over federal election law, including mail-in voting rules and voter ID. Whether the court sides with GOP legislators when it hands down a decision next year will ultimately depend on whether two more justices get on board.

In Wednesday’s arguments, Chief Justice John Roberts and Justice Amy Coney Barrett seemed to be exploring some kind of middle ground — suggesting they might prefer a narrower reading of the theory that could allow them to side with the legislature without severely disrupting existing norms.

Roberts suggested that state courts might have the ability to intervene if a state’s constitution imposed more precise limits on gerrymandering, but that the “free elections” provision in North Carolina’s constitution is likely too vague a standard. Barrett seemed skeptical that there could be any kind of manageable standard for distinguishing between procedural and substantive matters. (The GOP’s lawyer argued that state courts could still weigh in on procedural questions, but not substantive ones.)

The “compromise” could be that courts have no say over gerrymandering, or perhaps that they could only intervene in the very worst instances of gerrymandering.

Considering the danger that a broader interpretation of the legislature’s argument could pose, a compromise might seem like a good thing. It’s not. Redistricting shouldn’t be up to legislatures only, which is pretty much why we have three branches of government in the first place.

“Well, it could be worse” is hardly a comforting refrain, especially when it’s used in reference to the continued viability of our democracy. Yes, it’s a relief that at least five Supreme Court justices seem likely to reject the worst version of a theory that could be truly disastrous for democracy. But even a milder ruling could be plenty damaging in its own way — checks and balances is not something that anyone should want to compromise on.

This story was originally published December 7, 2022 at 4:52 PM with the headline "Supreme Court points to a possible Moore v. Harper compromise, and it’s not a good one."