Among the cases appearing on the US Supreme Court docket as it begins the 2022–2023 term is Moore v. Harper, which could have profound implications for congressional and presidential elections and, subsequently, democracy itself. At issue is whether the Elections Clause of the US Constitution gives state legislatures authority to regulate federal elections without any oversight by other branches of state government.

Among the many amicus briefs is one filed in September by Evan Caminker, dean emeritus and the Branch Rickey Collegiate Professor of Law, along with attorneys from the law firm Sidley Austin LLP. They filed the brief for the Conference of Chief Justices (CCJ), an organization comprising the chief justices or judges of the courts of last resort in all 50 states. 

“This is an institution that has independent stature because it is nonpartisan,” said Caminker, a constitutional law scholar who has frequently written on questions of federalism and the relationships between federal and state power. “The state supreme court justices are a highly respected group, and they're speaking with a voice that nobody else really has."

Interpreting the Elections Clause of the Constitution

The case began when legislators in the Republican-controlled North Carolina General Assembly drew congressional districts in response to the 2020 census. The North Carolina Supreme Court held that the maps were gerrymandered illegally under the state constitution and ordered new maps. After the new maps failed to satisfy the Court, it ordered an outside team to create yet another set of maps. 

In February 2022, the General Assembly sought a stay from the US Supreme Court to forestall use of the outside team’s maps. In March, the Court denied emergency relief to the legislators but, this summer, granted review of the case for the current term. 

As the case made its way through state courts, the legislature argued that the Independent State Legislator (ISL) theory—a literal, and controversial, reading of the US Constitution’s Elections Clause—gives legislatures sole authority to regulate elections. Specifically, it states the following: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

The CCJ brief argues that that is an incorrect interpretation. 

“There are basically two levels of argument in the brief,” said Caminker. 

First, the Elections Clause does not prohibit state courts from reviewing state laws regulating congressional elections.

“The Supreme Court should not use the ISL theory as a basis for displacing state courts from their traditional role of interpreting state law,” Caminker explained. “The state Court applied its normal rules of interpretation to decide that the state constitutional provisions do place a limitation on a legislature’s ability to gerrymander districts along political lines.”

Second, the brief states that any federal court review of state court decisions interpreting state laws governing federal elections must be tightly circumscribed and apply clear limits.

“Whatever standard of review should be highly deferential and should give state courts guidance,” said Caminker, “so that in future cases related to elections law, they’re not left entirely at sea, not having any real understanding of what it is that the US Supreme Court is expecting.”

Working with the state chief justices

Caminker started working with the CCJ when he realized that a state-court perspective was missing from the conversation. 

“They have an institutional voice that should be heard. This is their opportunity essentially to speak directly to their counterparts on the federal bench.” 

A friend connected him to the group, and he brought in Supreme Court specialist Carter Phillips of Sidley Austin, with whom he had previously worked on pro bono cases. Phillips then brought in the firm’s Virginia Seitz and Kathleen Mueller. 

One strength of the CCJ is that it’s a bipartisan organization that doesn’t often get involved in US Supreme Court cases. 

“They file amicus briefs generally in situations where state justices or state judges are directly affected by the litigation and where they think they have a unique role,” said Caminker. He added that CCJ is not a group with a political perspective, which could bestow on it a level of respect with the Supreme Court.

The impact of the Court’s decision

If the Court rules in favor of the North Carolina General Assembly next year, the impact on elections would be immense, said Caminker. 

“If the Court rules that the state legislatures are completely in control over how to run federal elections, they would be free from any checks and balances, from the state administrative agencies or from the state constitution and courts.” He noted that they would, however, still be bound by the US Constitution. 

Beyond issues such as redistricting, state legislatures would have complete control over all of the other rules that bear on elections, such as where and how people can vote. 

And while Moore v. Harper involves congressional elections, a second similarly worded clause in the US Constitution relates to presidential elections. 

“If the Court rules in favor of the state legislatures in this case dealing with elections of Congress, they are probably going to do the same thing when they get a case dealing with presidential elections,” said Caminker. 

“It would just raise all of the arguments and litigation and uncertainty that happened in November 2020.”