The Supreme Court Just Killed Independent State Legislature Theory

Photo by Abbylabar, CC BY-SA 3.0 , via Wikimedia Commons

One of the most impactful Supreme Court decisions from this term may turn out to be the ruling handed down in the sleeper case of Moore v. Harper. The case involved a North Carolina congressional redistricting issue, but the Supreme Court took the case as an opportunity to slap down the theory that state legislatures are not subject to judicial review with regard to election law. In David French’s words, the Court “nuked [the independent state legislature theory] from orbit.”

In the North Carolina case, the state supreme court ruled that the new congressional map was an unconstitutional partisan gerrymander. A federal court had ruled that partisan gerrymandering was beyond the scope of the federal judiciary (although federal courts could still intervene to stop racial gerrymandering), but the state court held that it could be addressed under state law and “also rejected the argument that the Federal Elections Clause vests exclusive and independent authority in state legislatures to draw federal congressional maps.” The court ordered a new, independently-drawn congressional map to replace the state legislature’s partisan one.

The initial ruling was subsequently revisited and overturned by the new North Carolina supreme court after the election when its makeup shifted from a Democratic majority to a Republican majority. This second case is referred to as Harper II to distinguish it from the earlier Harper I decision. The new ruling overturned the earlier decision that partisan gerrymandering could be resolved by state courts.

The legal wrangling is complex, but Chief Justice Roberts, writing for the majority, cut to the chase, saying, “ The court dismissed plaintiffs’ claims but did not reinstate the 2021 [partisan gerrymandered] congressional plans struck down in Harper I under the State Constitution.”

The independent state legislature theory essentially holds that the Elections Clause and the Presidential Elector Clause of the Constitution give state legislatures the authority to set election law without checks and balances except for congressional override. The Brennan Center has a detailed explanation of the legal theory and history of the idea, which originated in a concurrence by Chief Justice William Rehnquist in Bush v. Gore. Prior to this week, the Court had considered the theory only once when it rejected it in a 2015 case from (where else?) Arizona.

Opponents are concerned that independent state legislature theory could be used to dramatically alter American democracy. In theory, it would mean that state legislatures could enact laws that could enhance gerrymandering or suppress voting and the opposition party would have no recourse except to have Congress pass a new law to supersede the state law.

Most disturbingly, the theory was used by Trump sympathizers in 2020 in their attempt to overturn election results. Some Republicans objected to pandemic-era changes to voting procedures in the runup to the 2020 elections on the grounds that judges and state election officials had no authority to deviate from rules set by legislatures.

In the 6-3 decision yesterday, the Supreme Court pointedly eviscerated independent state legislature theory. Chief Justice Roberts wrote the opinion and was joined by a bipartisan group of justices that included Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson. Justice Kavanaugh also filed a separate concurring opinion. Justice Thomas wrote a dissent which Gorsuch joined in full and Alito joined in part.

After defending the Court’s jurisdiction and reasoning that the case was not moot, Roberts discusses Marbury v. Madison, the landmark case that you may remember from high school American History classes. Marbury established the judicial review process that, Roberts writes, “was so ‘long and well established’ by the time we decided Marbury in 1803 that Chief Justice Marshall referred to judicial review as ‘one of the fundamental principles of our society.’”

“The Elections Clause does not carve out an exception to that fundamental principle,” Roberts writes in the Syllabus. “When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review.”

As a final word, Robert says, “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review.”

In other words, state legislative actions on elections are still subject to judicial review at both the state and federal levels.

In part one of his dissent, Thomas calls the North Carolina case “a straightforward case of mootness. The federal defense no longer makes any difference to this case— whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same.”

It is on this question of mootness that both Gorsuch and Alito joined.

In part two, joined only by Gorsuch, Thomas adds, “I would gladly stop there…. Nonetheless, I do not find the majority’s merits reasoning persuasive.”

“I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts,” Thomas explained.

While Thomas, Alito, and Gorsuch have been panned for their dissenting votes, I’m not sure that they all subscribe to the independent state legislature reasoning. At least in Alito’s case, it seems that he may have objected to the case that was picked as a vehicle for the ruling. The same three dissented from denial in pandemic-era cases that the Court declined to hear, but we don’t know how they would have voted if those cases had been heard.

Well, we do have a clue how Thomas would have voted from his dissent in Moore, but even in Thomas’s case, he seems to reject the extreme form of the theory in which some proponents have argued that even a governor’s veto of election laws should not be allowed since the governor is neither part of the legislature nor Congress.

Despite Thomas’s concerns, the ruling seems to take the proper course. Even though judicial review and the power to strike down unconstitutional laws are not explicitly mentioned in the Constitution, Roberts points out that the concept was widely accepted and used long before Marbury v. Madison. Indeed, the judiciary could not function as a check and balance on the executive and legislative branches without the power of judicial review.

Considering that, does it make sense that judicial review should not apply stage legislatures making election law? After all, the Constitution also lists powers of the president and Congress without explicitly stating that these are also subject to review by the courts.

The pandemic did constitute a special situation. The intervention of courts to expand mail-in ballot access was controversial, but in many cases, the rulings were made early enough in the process to meet the Purcell guidelines against last-minute changes prior to an election. In any case, the sudden threat of a highly dangerous and contagious infectious disease presented a legitimate reason to make late changes.

That should not be construed as a license by state courts and election officials to make changes willy-nilly before every election. Despite alarmist claims to the contrary, the Court gave wide discretion to emergency measures in the early days of the pandemic but has since shortened the leash as the country returned to business as usual. The pandemic emergency laws have not become the permanent norm.

In any case, Republican electoral chances may have been damaged less by the extensions to mail-in and early voting than by the party’s own choice to attack the strategy of voting anytime and anywhere other than in-person and on Election Day.

FiveThirtyEight pointed out that there was little difference between the mail-in voting rates for the parties in 2016, but in 2020, early voting rates jumped for Democrats while Election Day voting skewed heavily towards Republicans. It might also have behooved Republicans not to renominate one of the most unpopular and incompetent presidents in history, the person who was also undoubtedly most responsible for the dropoff in Republican early voting.

One important point to note on the ruling is that not only was it bipartisan, but two of the three justices appointed by Donald Trump were in the majority. This was not a decision made by a liberal activist Court even though the dissenters were all made up of the Court’s conservative faction.

Ultimately, Moore v. Harper is a shot across the bow of state legislatures who think that they are insulated from accountability by the inapplicability of judicial review and the gridlock in Congress. As the nation careens toward the 2024 elections with many Republican state legislatures enacting laws that limit voter rights, restrict other than in-person voting, and even give state officials more power to overturn election results, the Supreme Court’s majority let it be known that federal courts will be watching them and that shenanigans will not be tolerated.