The New York County Lawyers Association (NYCLA) is pleased to report that the United States Supreme Court has adopted a position consistent with NYCLA’s amicus brief and position statement in Moore v. Harper. As NYCLA had urged, the Harper decision issued yesterday, rejected the so-called independent state legislature theory, which would have strictly limited challenges to gerrymandering and other restrictive redistricting in state courts. NYCLA’s statement can be found here.
Under the independent state legislature theory, only state legislatures, and not state courts, could prescribe election rules, including limitations on gerrymandering. NYCLA argued that this outcome was contrary to basic principles of judicial review and precluded by such cases as Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015). The Supreme Court’s opinion in Moore favorably cited Arizona State Legislature and squarely rejected the Independent State Legislature theory. As NYCLA had argued, acceptance of that theory would have imperiled judicial review of gerrymandering, undermining the principle of one person one vote in Baker v. Carr. A contrary decision would also have permitted packing minority voters into a limited number of districts, diluting their representation overall, and would also have encouraged other pernicious attacks on voting some of which we saw in connection with the January 6, 2021, riots and coup attempt and other events surrounding the last Presidential election. We applaud the Supreme Court’s Moore decision which averted such consequences.