Last week, the U.S. Supreme Court heard oral arguments in a case that could have significant ramifications regarding the power of state legislatures to set laws governing elections — and the power of state courts to review those laws.
The litigation known as Moore v. Harper resulted from a dispute over a new map of congressional districts in North Carolina passed by the state’s Republican-controlled Legislature in 2021. This February, the North Carolina Supreme Court ruled that the map was illegally gerrymandered in favor of Republicans and, as a result, violated North Carolina’s Constitution. Now the Legislature’s defense team is leaning on a controversial interpretation of the U.S. Constitution to argue that, when it comes to state laws about federal elections, state judiciaries don’t have the authority to weigh in. It’s called the “independent state legislature theory.”
The case has two firm ties to Montana. First, Attorney General Austin Knudsen joined 10 other attorneys general in September in filing a brief with the Supreme Court supporting the North Carolina Legislature’s position. Based on their reading of the U.S. Constitution, the group argued that the North Carolina courts “strayed far beyond their limits” by intervening in the redistricting process, and that by imposing a new map, the North Carolina Supreme Court “impermissibly exchanged the judicial for the legislative role” — even if state law authorized it to do so.
The second Montana connection comes courtesy of an ongoing legal battle over new election administration laws passed by the 2021 Montana Legislature. Those laws are currently on hold after a Yellowstone County District Court judge ruled this fall that they violate the state Constitution. But prior to that order, attorneys for Secretary of State Christi Jacobsen — the sole defendant in the case — argued in a legal brief that the federal government “has not authorized state courts to regulate election procedures.” Echoing the independent state legislature theory, Jacobsen’s legal team added that depriving lawmakers of the ability to regulate elections would “violate the United States Constitution’s explicit and mandatory delegation of authority to the Legislature to do just that.” The district court rejected that argument, and the case is currently on appeal to the Montana Supreme Court.
Put simply, the stakes are high in Moore v. Harper, and the case involves some complex and relatively untested constitutional theory. To better understand the legal nuances and potential implications, Montana Free Press turned to Craig Cowie, associate professor at the University of Montana’s Alexander Blewett III School of Law, who follows the high court closely. What follows is a sampling of our conversation — edited for clarity and length — about a case Cowie says “goes to the existential heart of the way we structure our society.”
MTFP: Can you bring us up to speed a bit on this case? What are the constitutional questions at play here?
Craig Cowie: So the federal Constitution has what’s called the Elections Clause, which is Article One, Section Four, Clause One, that basically says that the time, place and manner of holding elections for federal office — so senators, representatives — shall be prescribed by a quote-unquote “legislature.” What that means, in practice, is that state legislatures sort of set the conditions under which we all vote. Montana has its rules. Some states allow mail ballots, some default to mail ballots. They have different rules about how long people stay on the rolls, when you can register, whether or not you can vote in-person early. Those are all sort of time-place-manner restrictions on voting. In this way, we can have one election that covers both our state representatives and our federal representatives.
A legislature only has the authority to pass laws that is granted to it under the Constitution, both the state and federal. You can’t pass laws that are unconstitutional. And it’s courts who decide what the laws are, what they mean. There is a case that makes it clear that the [executive branch’s] veto power, when we say “legislature” for purposes of the Elections Clause, it includes that veto step. What the independent state legislature theory is arguing is that “legislatures” used in this way did not include that judicial oversight. At least that’s the strongest version of the claim that’s being made, is that there’s literally no role whatsoever for state judiciaries to rule on state constitutional grounds.
So the question here is whether or not that state court can say that something that the legislature is doing pursuant to the power given to it under the Elections Clause has violated the state constitution.
MTFP: Where exactly did this independent state legislature theory come from?
Cowie: The first place that it came up was in Chief Justice [William] Rehnquist’s concurrence in Bush v. Gore. Without getting too much into the weeds, basically Chief Justice Rehnquist was sort of putting down a marker saying, “Well, you know, at a certain point, I think the judiciary can do something that means it’s acting like a legislature.” In other words, it’s not exercising the judicial power but rather is exercising more of a legislative power.
MTFP: This case started as a redistricting dispute in North Carolina, but legislatures do a lot more under that Elections Clause than set congressional boundaries. For example, Montana lawmakers passed a law last year ending same-day voter registration — an act that a state court has since said violated the state Constitution. Just how far do the potential impacts of Moore v. Harper extend?
Cowie: To be clear, the principle is going to apply to everything about elections. Where can you early vote? What about COVID, what do we do? Do we allow people to turn in ballots on behalf of other people? When can we vote? Like, is it 8 a.m. to 5 p.m.? Is it 8 a.m. to 8 p.m.? The Legislature makes all sorts of decisions about how people vote. Here in Montana, I got my ballot in the mail, and I got it because I vote and so I’m on the rolls. Other people don’t vote, maybe they fall off the rolls so they don’t get the ballot but they can register, but they can only register up to a certain point. Some of the changes the [Montana] Legislature made are on hold due to ongoing litigation. But all of that is going to be affected by this rule. All of those [legal] challenges are out the window with the maximalist position.
MTFP: So the lawsuit that the Montana Democratic Party and other groups brought challenging four of the election laws passed last year, would we even have seen such a case under that maximalist version of independent state legislatures?
Cowie: Without having looked back specifically at the pleadings in the case yet, with the maximalist position, to the extent that they’re raising rights that are grounded in the Montana Constitution, no. The only challenges you’d be able to see at that point are challenges that are rooted in the federal Constitution.
MTFP: OK, that’s under the maximalist position. What other positions have the petitioners — the North Carolina Legislature — argued?
Cowie: Under the less deferential standard, which is the fallback position that the petitioners have here, but the one that would still be a great change from the way we do cases now, it wouldn’t make those cases go away. But the cases would become much more complicated. Now we’d be litigating not only the time, place [and] manner restrictions, but we’d also, up front, be litigating the question of whether or not the state court even has the power to rule on whether or not a particular action violates state law or the state Constitution.
That’s the position that’s going to generate a lot of litigation in the U.S. Supreme Court, because that’s where most of it will be headed. The cases are going to be filed in state court, the state court is going to do something, and then the litigants are going to be not happy with that and say, “Well, it violates the rule the court laid out in Moore v. Harper.”
MTFP: And what about the respondents’ position?
Cowie: What the respondents are arguing for is a very deferential standard. It is the norm that the federal courts can’t really tell the state courts how to interpret their own laws unless a federal right has been violated. The typical way in which we see the Supreme Court get involved in state law is they say that something about the state law or something about what the state court did violated a federal statutory or constitutional right. And because of the supremacy clause in our U.S. Constitution, federal law trumps conflicting state law, so they can do that. But if a state court is just saying, “This is what state law is,” it’s a much different question about whether or not the federal court can say, “No, you’re wrong about what the state can do, what the state law means.”
That’s where the respondents are planting their flag. When they say it’s a deferential standard, there is this idea that a state court can do something so beyond the pale of what we expect a state court to do in the exercise of its judicial power that they’ve actually crossed a line and either are acting like a legislature, which in this case would be not OK, or they’re somehow otherwise acting without authority. And it’s those cases that the respondents say, if that happens, the federal court, which is the Supreme Court, that’s where these things go.
MTFP: I just want to bring this down to the super simple, Schoolhouse Rock level for a moment and ask: At what point is Moore v. Harper a conversation about the basic checks and balances in our government?
Cowie: Right from the beginning I’d say this is a classic separation of powers, checks and balances argument. The metaphor I’ve begun using lately is our society, we framed our Constitution — both the various state constitutions and the federal Constitution — in opposition to the monarchy. That’s what we were breaking away from. And in the monarchy, one person does it. They make the law, they tell you what it means, they enforce the law … the powers are all together. And we were like, “You know what? That’s a bad idea. We are going to separate those powers into different bodies so that each can act as an independent check on the other.”
Your question about checks and balances is really important because there’s a reason we have them, and the reason is to keep everyone in their lane with this fundamental idea that we have taken what was a unified, all-encompassing power in a monarchy and we’ve separated it out precisely so that no single branch has all the powers. … The state court’s role in this model — to the extent the state has a similar model to the federal system — is to say, “Hey, legislature, you did something, but you’ve done something that’s unconstitutional, and because it’s unconstitutional you don’t have the power to do it. So we’ll strike down that law.” That’s the way the system is supposed to work. If we’re saying you can’t exercise that check anymore because you can’t even hear the case, then the legislature can act in a way that is, in effect, completely unbounded from its constitutional limits. That seems to strike at the very core of the founders’ argument about the way in which we should organize.
MTFP: Wouldn’t that suggest that there are ramifications here beyond election laws?
Cowie: Just to be clear, this is limited to election law because it’s the Elections Clause that we’re talking about. But you’re right in that the broader sense is that yeah, this is what we would expect for everything, so one question is why are we having an exception? Why should elections be any different from anything else that we do as a matter of state law? The petitioners are saying it’s different because this Elections Clause gives the power to the legislature, and the respondents in essence are saying no, it’s not, because when the Constitution said that, it meant given in the way that we think legislatures always act, which is subject to the veto and subject to constitutional oversight by the courts.
MTFP: It seems like those checks and balances have been fueling disputes between legislative and judiciary entities around the country. Do you get the sense that this case is reflective of that broader tension?
Cowie: I don’t know that I can speak to that, but what I can say, which I think is the answer, is that the point of checks and balances is that people get checked occasionally. And people generally don’t like it when they’re checked. But that’s the way the system is supposed to work, and the system has methods for fixing that. If a state court finds something unconstitutional and the people believe that it is constitutional or should be constitutional, they can amend the constitution. If a court says, “Well, state legislature, we think the law means this,” and the state legislature says “No, we did not mean that,” they can fix it. That’s a really easy thing, they just pass another law and they make it clear what they want.
MTFP: You watched the oral arguments on all this before the U.S. Supreme Court last week. What was the big takeaway for you?
Cowie: The most interesting thing was that there didn’t seem to be an appetite among five justices for that maximalist position. What’s going to be really interesting when the opinion comes out is going to be where they decide to draw that line. All the analysis and debate amongst the justices internally is going to be — there might be some who might draw that maximalist line — but I think the majority opinion when it comes out, if there is a majority opinion as opposed to like a plurality or something like that, will be more focused on how do we draw the line in a way to takes into consideration all the things we talked about.
I think all of the issues that we discussed already came up in those arguments. The concern about how far would this spread, the concern about what would happen to the [Supreme Court] docket, the concern about is this different from what we’ve done for 200 years. All of those issues arose during the argument. We’ll just have to see where the justices end up. I’m going to guess it’s going to be close to the last week in June .
MTFP: So at the end of the day, how important a case is Moore v. Harper?
Cowie: I think it is an existential question to the way we structure our society. This case could go a way that has a dramatic effect on that, or it could go a way that, in effect, changes very little from the way in which we think things act currently. …So it is a really important case. Even if the justices decide to come down closer to where we are currently, it is a focal moment.
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