Washington — “Incredibly disruptive.” Wreaking “havoc.” “Potentially damaging for American democracy.” Those are just some of the characterizations of a legal theory that is at the center of a case set to be argued before the Supreme Court on Wednesday.
Known as the “,” which largely laid dormant for the better part of 15 years, the idea may seem stale at first glance. But it has election law experts sounding the alarm that its embrace by the high court would upend election administration nationwide and ensnare federal courts in “endless” disputes about state law.
While four of the court’s conservative members expressed interest in the idea earlier this year, it’s unclear whether a majority of the justices is ready to adopt the theory pushed by North Carolina Republicans in the case known as Moore v. Harper. Some experts, though, believe there is no question on what the court should do.
“It’s not a prediction, it’s a normative statement: The Supreme Court cannot issue an opinion supporting the notion that state legislatures are able to operate unchecked when they’re making federal election law,” said Tom Wolf, deputy director of the Democracy Program at the Brennan Center for Justice. “Any rubric they would use to determine the right outcome points in the direction of needing to reject the independent state legislature theory.”
So, what is the independent state legislature theory, and how did an idea that was relegated to the legal fringes for years end up before the Supreme Court?
What is the independent state legislature theory?
The independent state legislature theory is the idea that the Constitution’s Elections Clause vests exclusive authority to state legislatures for setting elections rules for Congress and the presidency, without oversight from state courts to ensure those laws comply with state constitutions.
The Elections Clause states: “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
A version of the theory was invoked in 2000 by then-Chief Justice William Rehnquist in his concurring opinion in Bush v. Gore, in which he wrote “the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies.” In other words, there are limits on state courts’ authority to alter rules for federal elections.
Rehnquist, whose opinion was joined by Justices Antonin Scalia and Clarence Thomas, wrote: “There are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them.” Citing the constitutional provision providing for the appointment of presidential and vice presidential electors, Rehnquist said “the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.”
The theory gained little traction in the wake of Bush v. Gore but was thrust into the spotlight when it was raised by former President Donald Trump and his allies as part of efforts to overturn the results of the 2020 presidential election.
How did Moore v. Harper get to the Supreme Court?
The current dispute arose from the redistricting process undertaken by North Carolina’s GOP-controlled General Assembly after the 2020 Census.
Under the congressional map adopted by the state legislature in November 2021, Republicans had an advantage for 10 of the state’s 14 House seats. The state supreme court, however, rejected that map, finding it was an extreme partisan gerrymander that violated the North Carolina Constitution.
The General Assembly adopted new congressional voting boundaries, but that map, too, was rejected by a North Carolina trial court. Instead, it went on to approve a map created by a group of special masters and assistants and ordered the plan to be used solely for the 2022 election cycle. Under the court-drawn congressional map, Republicans were favored to win six seats to Democrats’ four, with the four remaining districts more competitive, according to an analysis from the Campaign Legal Center.
A request by North Carolina Republican leaders to the state supreme court for it to pause use of the court-crafted maps was declined, so they asked the U.S. Supreme Court to intervene for the first time in late February.
The GOP lawmakers argued North Carolina’s judiciary decided the “manner” in which the state’s congressional elections will be held, usurping the power granted to the state legislature by the Elections Clause.
The U.S. Supreme Court, though,use of the congressional maps adopted by the state court.
North Carolina Republicans returned to the high court again, filing a regular appeal that asked it to decide whether state courts have the authority to change regulations governing the “times, place and manner” of federal elections, a power they argued is given only to each state’s legislature under the Constitution.
On June 30, the court said it would hear the case.
Why did the justices agree to hear it?
Under the Supreme Court’s rules, four of the nine justices must vote to accept a case, but at least five votes form a majority to decide it.
In an opinion dissenting from the court’s denial of Republicans’ request to reinstate their congressional lines for the 2022 elections, Justice Samuel Alito, joined by Thomas and Justice Neil Gorsuch, expressed support for the independent state legislature theory.
The extent of a state court’s authority to reject federal election rules set by a state legislature is an “exceptionally important and recurring question of constitutional law” that warranted further review, Alito wrote.
“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” he said. “I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”
A fourth member, Justice Brett Kavanaugh, echoed his colleagues’ call for the Supreme Court to consider the issue.
While at least some of the justices have an interest in exploring the theory advanced by North Carolina Republicans, Wolf, of the Brennan Center, said he believes the “fight is still on.”
“Whatever the court’s motivation for taking the case is, it’s going to be very difficult on the back end for a majority of the court to endorse the theory,” he said. “Why? Because under any rubric that a Supreme Court justice might care about, the [independent state legislature theory] is clearly wrong.”
Wolf said the “major motivating force” in getting the idea before the Supreme Court has been some of the justices themselves.
The theory was primarily presented to the court in recent cases on its so-calledthe term for emergency actions taken by the Supreme Court without full briefing and oral argument. Wolf said the justices now have before them thousands of pages of briefs from a range of scholars and election law experts, in addition to the 90 minutes of oral argument set for Wednesday, (although arguments this term have stretched far past their allotted time).
Those filings make it abundantly clear the theory should be rejected, he said.
“There is no room for nuance,” he said. “The independent state legislature theory has no basis in the text, structure, history or practice of the U.S. Constitution. That case is clear.”
What are the arguments for each side?
In briefs filed with the Supreme Court, North Carolina Republicans and, on the opposite side, state officials, voting rights organizations and voters argue that history, the text of the Constitution and Supreme Court precedent are on their side.
For the GOP state lawmakers, the crux of the argument lies with the text of the Constitution’s Elections Clause, which provides that the manner of federal elections shall “be prescribed in each state by the Legislature thereof,” and turns on the word “Legislature.”
“That textual choice has an obvious and unavoidable consequence: the power to regulate federal elections lies with state legislatures exclusively,” lawyers for North Carolina Republican leaders said in a brief filed with the Supreme Court.
The GOP lawmakers argued that in the first 40 years of practice under the Constitution, 21 out of 24 states avoided imposing state-constitutional limits on federal elections.
The Constitution’s “carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress, and no one else,” they argued.
If election regulations are believed to be problematic, the Republicans continued, the solution is to convince either state legislatures or Congress to change them, or “amend the Constitution to adopt a different allocation of power — not to ignore the allocation that is clearly written down in the Constitution’s text.”
On the other side, voting rights groups, North Carolina voters and state elections officials argue founding-era history, post-ratification history, constitutional text, structure and Supreme Court precedent all cut against Republicans’ position that state legislatures have absolute authority in setting federal elections rules.
“It is rare to encounter a constitutional theory so antithetical to the Constitution’s text and structure, so inconsistent with the Constitution’s original meaning, so disdainful of this Court’s precedent, and so potentially damaging for American democracy,” lawyers for the groups argued.
The Framers, they said in a filing, understood a “legislature” to be a “lawmaking body constrained by the constitution that created it through a grant of power from the people.” And when legislatures flouted their constitutional limits, the Framers “understood that courts had a duty to step in,” the groups continued.
In North Carolina, specifically, the voting rights groups and state officials note the state legislature enacted a statutory scheme for legal challenges to state legislative or congressional redistricting maps — the basis for the case — which require them to be filed in Wake County Superior Court and heard by a three-judge panel.
“These statutes prescribe the legislature’s intended process for carrying out its Elections Clause responsibilities in the redistricting context,” state officials wrote. “By design, that process prioritizes ensuring that the people vote under constitutional maps.”
North Carolina voters and voting rights groups warned the court that adopting the GOP-proposed theory would “wreak havoc,” as it would require state elections officials to run two elections simultaneously: one for state elections under state constitutions, and another for federal elections.
The Justice Department is backing the North Carolina voters and elections officials in the dispute, and Solicitor General Elizabeth Prelogar will argue on behalf of the U.S. on Wednesday.
In a friend-of-the-court brief, Prelogar, too, said constitutional text, practice from the nation’s founding to today and Supreme Court precedent confirm that the Elections Clause “takes state legislatures as it finds them — subject to state constitutional constraints and state judicial review.”
“All of petitioners’ theories would severely disrupt the administration of elections around the Nation, forcing States to hold state and federal elections under different rules and flooding the federal courts — especially this Court — with new election challenges,” she wrote.
In addition to the parties directly involved, a slew of lawmakers, voting and civil rights groups, lawmakers, historians and scholars have weighed in through friend-of-the-court briefs, though there is vehement bipartisan opposition to the independent state legislature theory.
In one notable filing, the Conference of Chief Justices, made up of the chief justices or judges of top courts from all 50 states, told the Supreme Court that the Elections Clause “does not affect States’ decisions to authorize judicial review of state laws, including under state constitutions.”
A number of well-known Republicans, including former federal judge Michael Luttig, former California Gov. Arnold Schwarzenegger and GOP election lawyer Benjamin Ginsberg have warned that forbidding state courts from reviewing election laws under state constitutions would imperil the checks and balances that constrain state legislatures when regulating federal elections.
Luttig is a member of the legal team representing the nonprofit groups and voters who are involved in the litigation before the Supreme Court.
What could the justices decide, and what effect could a ruling have?
Though the case has to do with the redistricting process in North Carolina, experts are warning that a decision adopting the theory put forth by North Carolina Republicans would have sweeping ramifications on how election laws are considered.
More than 170 state constitutional provisions and 650 state statutory provisions, as well as thousands of administrative regulations issued by election officials, would be at risk, Wolf said. He also predicted that adopting the independent state legislature would invite more partisan gerrymandering, as state courts would be removed from the process of reviewing congressional district maps under state constitutions.
“The [independent state legislature theory] poses a real voter suppression risk, even if it’s not a license to coup,” Wolf said. “At its core, the [theory] is an attempt to melt down the checks and balances that historically have shaped the way rules for our elections are made in this country.”
Ginsberg told reporters in a briefing that he doubts the Supreme Court will fully embrace the independent state legislature theory and “let state legislatures go unchecked after 230 years.”
But a decision limiting state courts from assuming a legislative function when coming up with remedies for state constitutional violations could be an “off-ramp” for the Supreme Court, Ginsberg said, echoing a suggestion from professors William Baude and Michael McConnell.
The Honest Elections Project, a conservative organization, said a decision in favor of North Carolina Republicans — finding the power to regulate federal elections rests solely with state legislatures — would be a “net positive.”
“State legislatures will remain constrained by the federal constitution, state constitutional requirements concerning voter qualifications, and congressional supervision,” the group said in a filing with the Supreme Court. “Federal courts will provide the same modest check they already provide in our constitutional system. And state courts and executives will be free to interpret and administer — but not rewrite — the legislature’s written election code.”
But Ginsberg told reporters that adoption of the independent state legislature doctrine would lead to legal uncertainty, increase the chance that legislators give themselves power to certify votes, and effectively create an unchecked branch of government.
“The effects of adopting the petitioners’ version of the independent state legislature doctrine would be incredibly disruptive and confusing to most citizens at a time where goodness knows the system does not need to be confused and come under assault any more than it is,” he said. “Make no mistake about it: Adoption of a full-throated independent state legislature theory would set on its head 230 years of the way we’ve been doing business, and that is no small matter.”