Moore v Harper
Moore v Harper is the result of actions by the North Carolina State Supreme Court that struck down a new congressional map adopted by North Carolina’s Republican-controlled assembly in November 2021. In response to the 2020 U.S. Census data, in mid-2021, the North Carolina General Assembly, in a transparent public process that, allowed input from the public through a public portal, hosted public hearings throughout the state, invited citizens to draw their own district maps during recorded sessions, and held additional hearings, enacted a new map for congressional elections.
The Allegation
The Democratic party alleged that, by failing to reflect the 50–50 split in political affiliation, the new map violated the following Constitutional Clauses, namely: (1) Free Elections Clause; (2) Equal Protection Clause; (3) Free Speech Clause; and (4) Free Assembly Clause. In following the North Carolina Supreme Court’s order on February 4, the North Carolina General Assembly developed a remedy that included partisan election data which included: (1) mean-median tests that measured whether two or more independent groups differ in central tendency; and (2) the efficiency gap tests that measured the number of wasted votes for each party across the state.
Based on new partisanship data, on February 17, the North Carolina General Assembly approved an updated congressional district map. Nonetheless, on February 16, on its own, the North Carolina Superior Court appointed three Special Masters, who in turn, hired two political scientists, a mathematician, and a professor of neuroscience to assist in the remedy process. On February 23, the North Carolina Superior Court rejected the General Assembly’s February 17 updated map, and instead adopted the map created by the Special Masters and their assistants.
The North Carolina State Legislature, acting upon updates to the U.S. Census Bureau data, followed an observable and conspicuous redistricting procedure, during which the citizens from both political parties were allowed to: (1) submit their ideas to enhance their political positions; (2) share inputs to complement sound processes within the electoral process; and (3) advance protests to challenge potential threats to the inalienable right to vote, should maintain their Constitutionally-protected role to determine the “time, place, and manner” of holding federal elections.
The Foundation and Its Interpretation
The Independent State Legislature Theory (ISLT) is buttressed against the U.S. Constitution’s Article 1, §4 and 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 choosing Senators.”
The interpretation of the ISLT, at its core, and currently the center of controversy in Moore v. Harper, is that State Legislatures, and the methods in which members of State Parliaments redraw voting districts are rooted within the Constitution under the Legislative Vesting Clause, and therefore outside the persuasive eloquence, and exterior of the influential power of the judiciary in its attempts to impose extraneous rulings beyond the traditional checks and balances contained in Article 1, §2, Clause 1, which was already determined by a 5–4 majority opinion in Rucho v Common Cause,that partisan gerrymandering claims are “nonjusticiable” because political questions are beyond the reach of federal courts.
However, within the same syllabus, the SCOTUS reiterated that the Framers did not set aside electoral issues solely for the Legislatures to disentangle, and that the Courts play a role to ensure that redistricting does not violate the one-person, one vote rule, nor can the redrawing of voting districts be performed on the basis of race. In this context, the judiciary may not overrule redistricting based on faction, but may overrule only when State actions infringe on the inalienable right to vote.
North Carolina’s Actions
The North Carolina State Legislature’s actions may only be challenged if the redistricting process was done in secrecy, hidden under veils of obscurity, and exclusive of public scrutiny. The North Carolina General Assembly, by conducting a transparent redistricting process and by responding to the North Carolina Superior Court’s mandate to include partisan data in the remedial map, acted appropriately according to the tenets of Article 1, went above and beyond by considering faction in its new calculations, and should therefore be authorized to use its February 17 redistricting map, and that the respondents’ request to enjoin the use of the February 17 remedial map be denied.
The North Carolina Superior Court, by creating its own redistricting map, and by mandating the use of a judicially-sanctioned map, breached the protective frame of Article 1, §4, encroached into the sphere entrusted solely for the Legislative Branch, exercised power outside its domain to conduct judicial review, and violated the doctrinal concept of separation of powers.
The North Carolina Justices should have, using Strict Scrutiny, reviewed the North Carolina General Assembly’s February 17 remediation map for infractions against the Procedural and Substantive Due Process clauses, and if it observed a flaw, or if its earlier judicial rulings were not followed, could have tasked to State Legislature to overhaul its February 17 redistricting maps without influence from its judicial podium.
A SCOTUS Moore v Harper ruling in favor of the North Carolina General Assembly ensures that the judiciary, whether at State or Federal level, may not encroach into the State Legislature’s constitutionally mandated duty to preserve the integrity of the federal electoral process, nor may a State-level judiciary, whether on its own, or aided by outside experts, create, impose, or design a voting map independent of input from the Legislative Branch.
Copyright Leonard Casiple 2023. All rights reserved.
About the author: Leo Casiple is a first-generation American who grew up in Southern Philippines under martial law. He spent much of his 21-year career in the US Army as a Green Beret.
Leo is currently a doctoral student at Northeastern University’s Doctor of Law and Policy program (2022–2025 Cohort). He earned his education from California Lutheran University (MPPA), ASU Thunderbird School of Global Management (MBA in Global Management), Excelsior University (BS in Liberal Arts, Ethnic and Area Studies), Academy of Competitive Intelligence (Master of Competitive Intelligence™), Defense Language Institute and Foreign Language Center (18-month Arabic Language Course), and the US Army John F. Kennedy Special Warfare Center and School (Special Forces Qualification Course and Psychological Operations Specialist Course).
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