Moore v. Harper

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Moore v. Harper
Full case nameTimothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al. v. Rebecca Harper, et al.
Docket no.21-1271
ArgumentOral argument
Questions presented
Whether a State’s judicial branch may nullify the regulations governing the "Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof," U.S. Const. art. I, § 4, cl. 1, and replace them with regulations of the state courts' own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a "fair" or "free" election.
Laws applied
U.S. Const. art. I, § 4, cl. 1

Moore v. Harper (Docket 21–1271) is a pending United States Supreme Court case related to the independent state legislature theory, arising from the redistricting of North Carolina's districts following the 2020 Census.


North Carolina's congressional and legislative districts have been subject to protracted litigation over the past decade, in both federal and state courts. In the 2019 decision in Rucho v. Common Cause which arose out of district maps in North Carolina, the Supreme Court of the United States held that partisan gerrymandering claims are nonjusticiable in federal court.[1] However, courts can still evaluate redistricting maps for racial gerrymandering under the Voting Rights Act.

In 2017, the General Assembly modified state law to direct that the Speaker of the North Carolina House of Representatives and the President pro tempore of the North Carolina Senate be able to intervene in any litigation over the constitutionality of state law.

Following the 2020 United States Census, the state gained an additional seat in the U.S. House of Representatives, and required a redistricting of the state. The Census also showed that the state demographics were about 60% Caucasian and the remaining from other racial backgrounds, with African Americans and Hispanics making up the largest percentages.[2] The Republican-controlled legislature started drafting new maps which they claimed were in line with a previous North Carolina Supreme Court from 2019 that required the maps to be compliant with the Voting Rights Act to avoid racial gerrymandering, along with an open and transparent process to the voters of the state. State Senator Dan Blue, the state senate's Democratic leader, claimed that the resulting maps gave an advantage to the Republican Party in ten seats to the Democrats' in four. Multiple lawsuits were filed against the leaders of the North Carolina legislature in November 2021 on claims that the maps were both racially and partisan gerrymandered.[3]

Wake County Superior Court upheld the maps in January 2022. On the partisan gerrymandering, the court stated that in the lines of Rucho, "Were we as a court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government." The court also said the plaintiffs had not shown sufficient evidence that the new maps were racially gerrymandered.[4] On appeal, the North Carolina Supreme Court held the maps unconstitutional in a 4–3 decision given in February 2022, over the dissent of Chief Justice Paul Martin Newby, who called the court's decision an "unprecedented expansion of judicial power".[5]

Under remand to the superior court, the General Assembly attempted to draw up new maps to comply with the Supreme Court decision, but these failed to satisfy the judges on the superior court. A special master team of outside experts were assigned to create a new map, which was accepted by the superior court on February 24, 2022.[6]

On February 25, 2022, the General Assembly sought a stay for the newly-drawn maps pending appeal by the U.S. Supreme Court, to allow for review of the Elections Clause issue. It was denied on March 7, 2022, over the dissent of Justice Samuel Alito, who was joined by Justices Thomas and Gorsuch. Justice Brett Kavanaugh concurred, asserting the Purcell principle counseled against intervention so soon before the election.[7]

Throughout the litigation, the General Assembly argued their case based on the independent state legislature theory. This theory is based on language from the Elections Clause in the Article One of the U.S. Constitution, stating "The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof." The theory is based on the reading that Article I implies that only state legislatures may make any decisions related to election law, and prevent any actions from courts or the executive branch from challenging it. This would allow the state legislature to set redistricting as well as other voting choices. This theory has been backed by Republicans and conservatives since Bush v. Gore, thus making it a potentially landmark case according to legal experts.[8]

Supreme Court[edit]

The North Carolina Speaker of the House, President pro tempore of the Senate, and other members of the General Assembly subsequently filed a petition for a writ of certiorari.[9] The Court granted review on June 30, 2022, to be heard in the October 2022–2023 term.[10]


Moore v. Harper is expected to have a significant impact on future elections in the U.S. should the court support the independent state legislature theory.[10] Three of the current Justices, Samuel Alito, Clarence Thomas, and Neil Gorsuch, had stated in the dissent to the Court's March 2022 order denial that they believed the state argued correctly on employing the independent state legislature theory.[11] Should the court rule in the state's favor, the ruling would likely impact the 2024 United States elections as well as various state elections.[11]

See also[edit]


  1. ^ Williams, Pete (June 27, 2019). "Supreme Court allows gerrymandering in North Carolina, Maryland, setting back reform efforts". NBC News. Retrieved July 2, 2022.
  2. ^ Ingersoll, Ali (August 11, 2021). "Redrawing NC's election maps: Census data shows increasingly more diverse population". WRAL-TV. Retrieved July 2, 2022.
  3. ^ Jabocs, Rusty (November 1, 2021). "The maps haven't been adopted yet. But a redistricting lawsuit has already been filed in NC — and no one's surprised". WUNC. Retrieved July 2, 2022.
  4. ^ Corsa, Alexa; Kendall, Brent (January 11, 2022). "Judges Uphold North Carolina's GOP-Drawn Voting-District Maps". The Wall Street Journal. Retrieved July 2, 2022.
  5. ^ Allsup, Maeve (February 4, 2022). "North Carolina Supreme Court Strikes Down Republican-Drawn Maps". Bloomberg Law. Retrieved July 2, 2022.
  6. ^ Doran, Will (February 24, 2022). "NC political maps are official and election can begin, after court rulings". The News & Observer. Retrieved July 2, 2022.
  7. ^ Liptak, Adam (March 7, 2022). "Supreme Court Allows Court-Imposed Voting Maps in North Carolina and Pennsylvania". The Wall Street Journal. Retrieved July 2, 2022.
  8. ^ Totenberg, Nina (June 30, 2022). "Supreme Court to take on controversial election-law case". NPR. Retrieved July 7, 2022.
  9. ^ "Moore v. Harper". SCOTUSblog. March 17, 2022. Retrieved June 26, 2022.
  10. ^ a b Montellaro, Zach; Gerstein, Josh (June 30, 2022). "Supreme Court to hear case on GOP 'independent legislature' theory that could radically reshape elections". Politico. Retrieved July 7, 2022.
  11. ^ a b Lo Wong, Hansi (June 30, 2022). "How the Supreme Court could radically reshape elections for president and Congress". NPR. Retrieved July 1, 2022.

Further reading[edit]

  • Litman, Leah; Shaw, Katherine (2022). "Textualism, Judicial Supremacy, and the Independent State Legislature Theory". Wisconsin Law Review. 2022 (5). SSRN 4141535.

External links[edit]