January 2023 Newsletter

by | Jan 1, 2023 | AVC Newsletter

Are State Legislatures Really Independent? 

by Vickie Deppe 

On December 9, the Supreme Court heard arguments for Moore v. Harper. At issue is a remedial redistricting map drawn by a special master commissioned by the North Carolina Supreme Court after the two proposed by the state legislature were determined to be excessively gerrymandered. Timothy Moore in his capacity as Speaker of the House is challenging the map based on Article I, Section 4 of the United States Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof…”  

Moore’s attorney argues that by virtue of the plain text of the Constitution and because federal elections are a federal function, state legislatures are not subject to judicial review by state courts where it concerns congressional redistricting. This is known as the “independent legislature theory.” One of many points raised by Moore’s counsel in support of this argument is US Term Limits v. Thornton in which the court held that states cannot impose term limits upon members of their congressional delegations because federal elections are a federal function and states, therefore may not impose their own requirements beyond those established by Congress. This, incidentally, is why US Term Limits is seeking congressional action or an Article V Convention. 

Attorneys for Harper argue, on the other hand, that legislatures are routinely subject to gubernatorial veto and judicial review, and election matters should be no exception. Moreover, they posit that “the legislature” in this context means not just a lawmaking body, but includes any entity involved in lawmaking in any sense. By this logic, veto power makes the governor part of the legislature, as is a state court by virtue of its ability to vacate a law repugnant the constitution—whether the state’s own or, owing to the Supremacy Clause, the United States Constitution. Citizens, too, play a role in lawmaking by voting on—and in some states proposing—referenda. This is the logic employed by the late Justice Ruth Bader Ginsburg in the Court’s 2015 decision to uphold Arizona’s independent redistricting commission. 

Commentators on both the left and the right describe the case in superlatives: “earth-shaking,” “disastrous,” “radical,” “terrifying.” But the label “independent legislature” is ultimately a misnomer. If the Court sides with Moore, state legislators will not become a law unto themselves as the term “independent legislature” suggests. The Constitution stipulates that where elections are concerned, state legislatures are accountable to Congress, and consequently, to federal courts rather than their own state courts: “the Congress may at any time by Law make or alter such [federal election] Regulations.” Those who support the Harper argument maintain that reading “the legislature” more comprehensively is better for democracy, but the irony is that they’re advocating that redistricting be put into the hands of mostly unelected judges rather than a body that must stand for reelection on a regular basis. 

Moore v. Harper does, however, hold significant implications for federalism: the Harper team argues that upholding the independent legislature theory, which would make federal courts the sole remedy for gerrymandered redistricting maps, has great potential to erode states’ internal checks-and-balances power to uphold their own laws and constitutions. Additionally, eleven states, mostly in the west, have worked to thwart gerrymandering by delegating the task of redistricting—at least in part—to independent commissions. Should the state decide for Harper, it could render such commissions unconstitutional and return the task of redistricting to the legislatures in these states. 

The good news is that if the Moore v. Harper decision turns out to be a judicial debacle, the states have the power—if they wish—to amend the Constitution to make it clear that legislatures are accountable to both state and federal authorities where federal elections are concerned. 

Readers may listen to oral arguments here and enjoy an entertaining debate between Berkeley Heller Professor of Law John Yoo and Yale Sterling Professor of Law Akhil Reed Amar here. 

In Memoriam: Frank Keeney 

by Neal Schuerer, President, Path To Reform 

State Legislators Article V Caucus Steering Committee Member 

With deep regret and sympathy extended to his family, I have the sad task of informing our readers that Article V champion Frank Keeney passed away on December 11, 2022.  Frank was the founder  of Act 2 Reforms and Path To Reform, a mentor to me, and a mind that couldn’t quit thinking of a way to “preserve the union.” In his last words penned to state legislative leaders and challenging all Americans to act, Frank admonished us with these words: 

“We must bequeath to our children and future generations of Americans the same freedoms that we enjoyed in the earlier years of the republic.” 

Please join me in extending condolences to Frank’s family and friends by visiting the obituary and celebration of Frank’s life here. 


Article V News 

In Missouri, Senator Curtis Trent has prefiled SB 274, a delegate selection and oversight statute. Readers who wish to learn more about drafting a DSO can view segments from Academy 3.0 here and here. 

In Montana, Senator Tom McGillvray has prefiled the Convention of States Project application, SJR 2. Our interview with Sen. McGillvray may be accessed here. 

In Tennessee, HJR 5 calling for a convention to impose term limits on members of Congress has been prefiled by Representative Chris Todd. 

Who Said It? 

The Constitution is a layman’s document, not a lawyer’s contract. 

President Franklin Delano Roosevelt 

September 17, 1937