The prevailing view after oral argument is that there are not five Justices in favor of the most extreme interpretation of the Independent State Legislature theory, but that Chief Justice Roberts, along with Justices Kavanaugh and Barrett, might be looking for some type of compromise ruling. That compromise might well enable state courts to have some role in deciding cases involving gerrymandering of congressional districts, though under a standard which might be quite restrictive in terms of any remedy that a state court could order.
While there are potential implications from any decision in the Moore case that could have a harmful impact on future cases involving the selection of presidential electors, or even the recently enacted Electoral Count Act reform statute, the facts in front of the Court now relate to whether the Republican-controlled North Carolina legislature, which adopted an extremely gerrymandered congressional district map, can be rejected as unconstitutional by the North Carolina Supreme Court.
Let’s assume for a minute that whatever compromise U.S. Supreme Court ruling emerges, that it in fact does give state legislatures enormous leeway in setting congressional districts such that the North Carolina gerrymandered plan is upheld. This result might look something like what has happened in Ohio, where the Ohio Supreme Court has repeatedly ruled the Republican-controlled Ohio state legislature gerrymandered House districts are unconstitutional under the Ohio state constitution, but under the state’s law, the Ohio Court can only reject a legislatures plan but is powerless to craft a new one.
Thus, what happened in Ohio is the state legislature kept enacting plans the Ohio state Supreme Court found unconstitutional, but given that the court was powerless to fashion any alternative plan, time simply ran out and elections were held based on the extreme gerrymandering that the Ohio state legislature had accomplished.
Whether Moore turns out to be a complete or compromise victory for the ISL boosters, let me raise a major note of caution for those looking for the Supreme Court to sanction this kind of political behavior by state legislatures. I will put it bluntly: If you want the Supreme Court to uphold some form of this radical theory under Moore, be careful what you wish for, because two can play this game.
What I mean by that is that Democratic states that have Democratic controlled state legislatures with Democratic governors might well be forced to answer the moves by Republican states with their own extreme gerrymandering plans that their state courts would also be unable to overturn.
In fact, looking at the states where the greatest opportunity for increasing Democratic representation in the House of Representatives are, they reside in the highly populous states of California, New York, and Michigan, which together now have 29 Republican seats. Highly populated Republican states such as Texas and Florida have already been through major redistricting with major Republican advantages in how the districts were drawn. There simply is not much opportunity left there to create much more Republican partisan advantage.
The same can be said for North Carolina and Ohio. While there are many small states like North Dakota, South Dakota, Wyoming, Idaho, and Montana, that have Republican state legislatures, the states are simply too small to have any impact at all on the overall number of Republican congressional districts. Many Southern states with Republican governors and legislatures already have overwhelmingly Republican House delegations. Many large population swing states, like Pennsylvania and Virginia, do not have unified single party control of the legislature needed to formulate a highly partisan redistricting plan.
On the other hand, the Democratic legislature in New York State had come up with a highly gerrymandered congressional district plan that would have created four more solidly Democratic districts in that state, which New York’s highest court refused to implement and instead required a House district map more favorable to Republicans. In fact, the additional Republicans elected to the new Congress from New York essentially make the difference between Democratic and Republican control of the new House of Representatives.
So the Supreme Court decision that election deniers and highly partisan Republican legislatures are rooting for would probably allow the New York legislature to revert to its original plan. It would also probably allow the California state legislature to significantly endanger a number of the 12 Republican House seats held in that state by eliminating the drawing of districts by an independent commission which is the current practice in California. Michigan, which had a Republican legislature until the November election, flipped its legislature to Democratic control, and with its Democratic governor, there is a gerrymandering opportunity in that state as well. In a House of Representatives where there are only 5 votes defining which party controls that chamber, upholding some form of the independent state legislature theory could readily hand Democratic state legislatures enough authority to end up changing the balance of power in the House come 2024.
There would be great irony here. The extreme conservatives on the Supreme Court in overturning Roe v. Wade created an election issue which had an awful lot to do with Democrats achieving far better results in the 2022 midterm election than was ever thought possible. It would be an interesting repeat of that phenomenon if the Supreme Courts ruling in Moore ended up creating a Democratic reaction to that ruling which advantaged Democratic control of the House of Representatives going forward. Again, the coalition of anti-democratic forces rooting for a victory in Moore should be careful what they wish for.
Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC and is the former CEO of TiVo. Currently, executive chair of Engine Gaming & Media, and a member of Keep Our Republic, an organization dedicated to preserving the nation’s democracy.
Correction: An earlier draft of this article misstated how many Republican House seats would be endangered, as well as the number of Republicans in California, New York and Michigan.
The views expressed in this article are the writer’s own.
