Partisan Gerrymandering Out or In: An Independent State Legislature 

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Authored By: John M. Dickinson 

Senior Associate Editor, American Journal of Trial Advocacy

          Racism, politics, reproductive rights, riots, police brutality, and protests have plagued our newsreels for years. It seemed to get worse in 2020 when the whole world paused for what seemed like an eternity. People taking to the streets in protest. An election. A Pandemic. As we come off the tumultuous wave of covid restrictions, and just pandemic life, we strive and seek normalcy. But what is normal anymore? The world cannot go through a global pandemic as large and far-reaching as covid and not feel the effects. 2020 marked a hard year for many, and while we are still feeling those effects, the residents of North Carolina feel them differently. 

            You see, every ten years the United States government conducts a census.[1] The most recent of which took place during that crazy year of 2020.[2] The census plays a vital role in our government structure, as it not only accounts for people’s demographic, birth rates, death rates and other statistical data, it is determinative in congressional redistricting efforts and is instrumental in “determin[ing] the distribution of U.S. House seats across states.”[3] In an action relegated to the state courts of North Carolina under[4], voters challenged the republican led legislature’s attempt to pass a partisan gerrymandering case.[5] These voters, upset with the map as drawn, saw the actions of their republican legislature to be a violation of the North Carolina State Constitution’s free election clause.[6] The Supreme Court of North Carolina said what many were thinking, that the redistricting plans were “egregious and intentional partisan gerrymanders” enacted with the sole purpose of giving Republican voters “a greater voice . . . than to any others.”[7]

            The legislature ultimately filed an emergency appeal that was denied, but the Supreme Court of the United States has agreed to hear the case, and has just heard oral arguments.[8]  During the oral arguments, the parties argued over whether there is any truth to or viability of the so-called Independent State Legislature theory.[9] This theory, which has gained traction over the last few years, would allow state legislatures more control over their electoral maps, and to the greatest degree allow for voter suppression laws to resurface.[10] It is commonly understood and accepted that the United States Constitution delegates the power to administer federal elections to the states,[11] but there is debate as to “how much power is delegated and to which state actors exactly.”[12] Proponents of the theory argue that the states have been given “exclusive and near-absolute power to regulate federal elections.”[13]

While the supreme court has yet to adopt the position held by the proponents of the independent state legislature theory, it is a terrifying thought that it may one day be incorporated into the law. Our system has already disenfranchised so many people. Many believe that their vote will not matter in the outcomes of elections, and many have lost their right to vote. Should this theory be adopted, then those who already felt voiceless will be rendered so. In a time when people’s reproductive rights have been largely left unprotected, when people face the injustice of police brutality, and when so many have already lost their right to vote, the thought of one party seizing control is utterly terrifying. 

2020 was a tough year for many; loved ones were lost and jobs were lost. It resulted in an inflated struggling economy. But it seems that those who weathered that storm must do so again. Clear skies may be ahead, but so far the 2020s have been challenging in so many ways, and likely in ways that have yet to be realized.  

[1] Decennial Census, United States Census Bureau (Aug. 4, 2022),,federal%20funds%20to%20local%20communities.

[2]2020 Census, United States Census Bureau (Nov. 29, 2022),

[3]Apportionment and Redistricting Following the 2020 Census, Congressional Research Service (Sep. 29, 2021),as%20apportionment%20(or%20reapportionment).

[4] See Rucho v. Common Cause, 139 S. Ct. 2484, 2500 (2019) (“Any judicial decision on what is ‘fair’ in this context would be an ‘unmoored determination’ of the sort characteristic of a political question beyond the competence of the federal court”). 

[5] Harper v. Hall, 380 N.C. 317, 868 S.E.2d 499, 508 (2022); Moore v. Harper, 142 S. Ct. 1089 (2022). 

[6] N.C. Const. Art. I, § 10; Harper, 868 S.E.2d at 509 (2022) (“[a]ll elections shall be free” means that every vote must count equally. N.C. Const. art. I, § 10”).

[7] Harper, 868 S.E.2d at 510 (2022). 

[8]Transcript of oral Arguments at 70, Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21-1271). 

[9] Transcript of oral Arguments at 70, Moore v. Harper, 142 S. Ct. 1089 (2022) (No. 21-1271).

[10] Ethan Herenstein, The ‘Independent State Legislature Theory,’ Explained, Brennan Center for Justice, (June 30, 2022).

[11] US Const. Art. I, § 4, Cl 1.

[12] Ethan Herenstein, The ‘Independent State Legislature Theory,’ Explained, Brennan Center for Justice, (June 30, 2022). 

[13] Id

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