After the 2020 census, North Carolina gained a 14th seat in the U.S. House of Representatives. This meant the Republican-led state legislature was able to redraw the House Congressional districts, adding another congressional district, consequently employing partisan gerrymandering. In February 2022, this new map was challenged in the North Carolina Supreme Court. The new map was struck down because it employed partisan gerrymandering in favor of Republicans, with the North Carolina Supreme Court calling for an independent entity to redraw the congressional map.
North Carolina representatives, however, have challenged this ruling on the basis of the Independent State Legislature Theory, bringing this case to the US Supreme Court. According to the Independent State Legislature Theory, “the word “legislature” in the U.S. Constitution [means] that state legislatures — and only state legislatures — can make laws regulating federal elections” (Democracy Docket). This “right-wing constitutional theory…would allow state legislatures to set election rules and congressional maps unchecked — not by governors, state courts, the people or even state constitutions themselves” (Democracy Docket). The US Supreme Court agreed to hear the North Carolina redistricting case, Moore v. Harper, but the case has been on the docket since 2022.
According to James Piltch, if the Supreme Court rules in favor of the Independent State Legislature Theory, there could be major consequences, including the states having no input for the congressional redistricting process. In regards to democratic erosion, subnational authoritarianism would be increased, denying free and fair elections and representation to constituents due to the inability of the state courts to declare racial or partisan gerrymandered maps unconstitutional. The ability of Republican legislatures to control congressional maps creates an electoral system that is unfree and unfair, reducing the quality of democracy in North Carolina, which could be applied to other states in the US, jeopardizing the quality of democracy nationwide. Further implications of the Independent State Legislature Theory also have potential to harm the status of democracy and subnational authoritarianism, such as banning independent redistricting commissions, which have been declared constitutional in the 2015 SCOTUS Arizona State Legislature v. Arizona Independent Redistricting Commission case. These commissions have been used in an effort to limit the effects of gerrymandering, but denying these commissions abilities could mean restricting minority groups’ right to vote in state and national elections, or gerrymandering minorities out of power completely, with no protection from the judicial system.
By doing so, the political opposition as well as minority groups would be intentionally weakened, resulting in democratic backsliding on the subnational level. Without a competitive opposition, opposition groups would not be able to access institutional channels to challenge the majority. The disenfranchisement of minority groups, such as black voters, and the systemic undermining of the Democratic party could be negative consequences from the rulings in Moore v. Harper. In federalist systems such as the United States, state governments have significantly more autonomy, allowing for an increase in subnational authoritarianism. Although the Independent State Legislature Theory is being argued by North Carolina Republicans, implications of Moore v. Harper could be felt in Democratic states as well, using partisan gerrymandering to their advantage.
Another possibility from the Supreme Court hearing, in regards to an increase in subnational authoritarianism in the United States, would be the ability of state legislatures to overturn federal election results in the states. According to Gellman, state legislatures have the ability to control the “‘Manner’ of congressional elections and the appointment of presidential electors in each state to ‘the Legislature thereof’”. If using the Independent State Legislature Theory, state legislatures would have increased control over elections and restricting the ability of the courts to hold the legislature accountable. Decreasing the court’s legitimacy and ability to hold other branches of government accountable, horizontal accountability would significantly decline, ensuing an increase in an erosion of democracy. Democratic institutions would be weakened by undermining the ability of the courts to check the actions of the legislature and concentrating more power in the state legislature. Also, by allowing state legislatures to appoint presidential electors, a Republican legislature could use the Independent State Legislature Theory to its fullest extent to disregard the popular vote and instead appoint Republican electors. By completely ignoring the will of the people and exercising full control over the results of the election, the political elites would be signaling their willingness to reduce democratic institutions. Due to the institutional weakening, citizens would be restricted in their capacity to hold the legislature accountable. These actions combined would result in an increase of autocracy on the state level in the United States, overall affecting the national level of democracy as well.
Although the scenario of an increased level of subnational authoritarianism sounds impractical in the historically democracy-defending nation of the United States, multiple Supreme Court Justices have indicated a support for the Independent State Legislature Theory, including Neil Gorsuch, Samuel Alito, and Clarence Thomas, with Brett Kavanaugh also implying support. However, horizontal accountability may be American subnational democracy’s saving grace. In an effort to constrain the effects of the potentially dangerous ruling in Moore v. Harper, both the House of Representatives and the Senate have introduced bills to block the ability of state legislatures to override a presidential election. The Presidential Election Reform Act in the House successfully passed, and a similar bill, the Electoral Count Reform Act, in the Senate has potential to pass with bipartisan support. Horizontal accountability at the national level may be enough to restrict the North Carolina Republicans undemocratic goals, but it is also needed at the state level. Although at the subnational level, legislatures have increased their authority resulting in democratic backsliding, national institutions still have the ability to combat erosion, minimizing the decline of democracy in the US.