Supreme Court Rejects Radical Independent State Legislature Theory

The Supreme Court on Tuesday rejected the radical argument brought forward in the controversial case of Moore v. Harper that state legislatures have the sole power to draw congressional district maps and set election law.

The independent state legislature theory that Republicans in the North Carolina legislature wanted the court to adopt claims that the U.S. Constitution vests power to set the “time, place, and manner” of federal elections to state legislatures alone. This would give state courts no ability to rule on gerrymandered maps or other election laws that may run afoul of their respective state constitution. State legislatures, themselves often gerrymandered to give one party majority control, would then have free rein to draw congressional maps and set election laws without judicial checks and balances.

The court rejected this theory in a 6-3 decision written by Chief Justice John Roberts by affirming the role that judicial review by state courts still plays in judging district maps drawn and election laws passed by state legislatures. Justices Brett Kavanaugh, Amy Coney Barrett, Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson joined Roberts’ opinion. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented.

“We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not,” Roberts wrote. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”

The heart of the case centered on the Elections Clause of Article I of the U.S. Constitution. That clause states that “the Legislature” of each state has the power to set the “time, place, and manner” of federal elections within its own boundaries. Proponents of the independent state legislature theory argued that “the Legislature” should be properly defined to mean the state legislature alone.

The court rejected this argument and affirmed that “the Legislature” included the whole body of state government, including the courts and the governor.

In doing so, Roberts pointed to three court precedents that upheld the ability of governors to veto congressional district maps, citizens to reject congressional redistricting by ballot initiative and citizens to pass a ballot initiative to remove the legislature from the redistricting process.

“In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution,” Roberts wrote.

While the court rejected the most extreme version of the independent state legislature theory as put forward by North Carolina Republicans, Roberts still held that there are limits on how state courts interpret election law.

“As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law,” Roberts wrote.

Opponents of the independent state legislature theory speak before the Supreme Court.

But Roberts did not provide any detail on what test the court might use to review state court decisions in future election cases.

“The questions presented in this area are complex and context specific,” Roberts wrote. “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

In a concurring opinion, Kavanaugh wrote that he welcomed future cases that would provide the court opportunity to “distill that general principle into a more specific standard.”

While the issue of the radical version of the independent state legislature theory is now settled, the court is likely to see an increase in cases challenging the merits of individual state court election law decisions.

Liberals and conservatives ― from former attorney general Eric Holder and Democratic Party lawyer Marc Elias to retired federal judge Michael Luttig and Federalist Society co-founder Steven Calabresi ― opposed the adoption of the theory. They argued that if the court adopted the theory it could lead to a subversion of democracy and the enshrinement of minority rule.

Opponents of the theory cheered the court’s decision.

“This ruling is a resounding rejection of the far-right theory that has been peddled by election deniers and extremists seeking to undermine our democracy,” former President Barack Obama said in a statement. “And it makes clear that courts can continue defending voters’ rights—in North Carolina and in every state.”

“The decision is a complete repudiation of the independent state legislature,” said Neal Katyal, the lead lawyer in the case for plaintiff Common Cause.

The decision also signals that “this U.S. Supreme Court, with a solid six justices, will resist attempts by state legislatures to mess with the integrity of the 2024 election,” Katyal added.

Not everyone was happy with the outcome. Thomas, in a dissent joined in full by Gorsuch and in part by Alito, announced that he would have approved the most radical version of the independent state legislature theory. But he first declared that the court should have simply dismissed the case since the underlying facts were no longer applicable.

After Republicans won control of the North Carolina Supreme Court in the 2022 midterm elections, they reversed the court’s 2022 decision that had rejected the legislature’s district maps at issue in Moore v. Harper.

“In short, this case is over, and petitioners won,” Thomas wrote. He added, “As a result, petitioners’ alternative Elections Clause defense to those claims no longer requires decision; the merits of that defense simply have no bearing on the judgment between the parties in this action.”

The theory was at the heart of former President Donald Trump’s effort to overturn his loss in the 2020 election and led directly to the Jan. 6 insurrection. Trump turned to the independent state legislature theory in arguing that state legislatures could submit competing slates of electoral votes in favor of him to Congress ahead of the Jan. 6 counting of the votes. When no legislature did this, Trump and his lawyer John Eastman got GOP electors to submit fake slates in their bid to get then-Vice President Mike Pence to declare the result in key states contested and not count their votes.

Moore v. Harper dealt only with congressional elections and did not directly raise the possibility of putting the submission of electoral college votes solely in the hands of state legislatures. But had it succeeded, it would have provided greater rhetorical heft to future efforts by presidential candidates who lie, claim election fraud and attempt to steal elections.