The Supreme Court's second surprise

Legislatures can still be checked by state law - and the Independent State Legislature theory gets a well-deserved thrashing.

Here at the Electoral Innovation Lab in Princeton, our day’s plans were partially derailed by the good news in the Moore v. Harper case. The decision wasn’t necessarily a surprise, based on long-standing law or even pure power considerations. But the vigor of the 6-3 decision was refreshing.

The Supreme Court upheld the principle that all the checks on a runaway state legislature - independent commissions, the governor, and state courts - still apply. For redistricting, the subject of the case, in terms of complex systems the positive feedback loop can still be counterbalanced:

So…laissez les bon democracy roulez!

Instead of saying more, let me turn over the stage to our summer team. One of our visiting interns, Grace Geier from Stanford University, has translated the mysterious diagram above into everyday language - and into a plan for how today’s decision preserves the best current routes for preserving and strengthening our democracy. Grace, take it away.

FOR IMMEDIATE RELEASE

U.S. Supreme Court rejects Independent State Legislature Theory

SCOTUS denies state legislatures the exclusive authority to conduct partisan gerrymandering

Princeton, New Jersey — June 27, 2023 — The Moore v. Harper decision demonstrates the Supreme Court’s continuing respect for state constitutional authority, and maintains that partisan legislators must still follow state law. 

The North Carolina legislature (Moore) asserted an exclusive authority to draw congressional maps, based on a newly-emergent Independent State Legislature Theory (ISLT). They argued that they possessed sole and absolute jurisdiction over drawing congressional maps; in their telling, state courts should no longer be allowed to constrain or exercise oversight over their authority. In this way, ISLT could eliminate a check on state power that dates all the way to the Founding.

But the Supreme Court upheld the state court’s fundamental power to interpret its own laws and constitution. In a 6-3 decision, they upheld a precedent set by Smiley v. Holm, a cornerstone of state judicial power that prohibits legislatures from bypassing the constitutionally bestowed authority of the governor in redistricting. Chief Justice Roberts acknowledged the impact of this ruling in putting an end to ISLT, stating that Smiley “commands our continued respect.”

Notably, Roberts’s decision goes out of its way to affirm Arizona Legislature vs. Arizona Independent Redistricting Commission, a 2015 decision that upheld the authority of independent citizen redistricting commissions. Roberts was originally in the minority on Arizona. Today, he acknowledges that along with governors and state courts, such commissions provide a critical third check on runaway legislatures.

Despite continued attempts by state partisans to circumvent constitutional authority, the Supreme Court rejected state legislators’ bid to remove parts from the complex clockwork that makes our democracy run. U.S. voters depend on these parts, which maintain a balance of powers in an era of partisan polarization and distrust in institutions.

Moore v. Harper secures a state’s ability to limit partisan manipulation of Congressional maps. In every state, American democracy has negative feedback mechanisms to restrict runaway gerrymandering and safeguard elections from vote dilution. The three feedbacks are independent commissions, governors, and courts. By maintaining these essential mechanisms, the Supreme Court left open routes for electoral outcomes to be determined by voters, not politicians.

Today’s decision also points a path to defending democracy and building reform, state by state. Reformers are applying these feedback mechanisms across the nation. Ohioans are now in a position to repair their broken redistricting process with a new citizen initiative in 2024 to plug loopholes and create a truly independent commission. Here at the Electoral Innovation Lab, we’re doing a deep dive into both the successes and failures of recently-created commissions in Michigan, Colorado, Virginia, New York, and other states. And courts continue to play a role: Wisconsin’s state Supreme Court is reviewing one of the most gerrymandered legislative maps in the nation.

Citizen initiatives, which are upheld by the Moore v. Harper, aren’t just limited to redistricting. They can change the law or constitution in half the states, and help build a fairer and more responsive government. Initiatives for ranked-choice voting in Oregon, Nevada, Idaho, and elsewhere can give voters more say in who they elect.

Here at the Electoral Innovation Lab, we have a practical goal: understanding how to match reforms to political conditions in a complex and diverse nation. We are using tools of data analytics, computer simulation, and cognitive and social sciences to build a foundation that will help optimize reform at a state and community level. We strive to build a science of democracy reform, and to translate our multidisciplinary approach into practical solutions.

Stay tuned in coming weeks for updates the progress that can come after Moore v. Harper. On Twitter, follow the Electoral Innovation Lab and the Princeton Gerrymandering Project. And keep on reading Sam’s Substack!

The Electoral Innovation Lab focuses on the science behind democracy reform—including fair redistricting, new voting rules, and a more responsive election process. Drawing on resources from the Princeton Gerrymandering Project, Princeton Election Consortium, and Representable.org, EIL uses data, math, law, and public policy to illuminate practical and innovative approaches to democracy reform efforts. Specific project areas include technical and scholarly research, guides to redistricting and ranked-choice voting, analysis of reform proposals, guidance to maximize individual citizen impact, expert testimony, and public data and software. 

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Media contact: 

Diana Philip, 202-870-0422

diana@electoral-lab.org