Supreme Court grapples with theory that would upend federal election rules

Washington — The Supreme Court on Wednesday weighed a blockbuster redistricting case from North Carolina involving whether state legislatures have near exclusive power to set federal election rules with no review by state courts, a dispute that brought stern warnings of the disruptions such an idea could cause to elections nationwide and the unchecked power it could give to state lawmakers.

Known as Moore v. Harper, the case stems from the redrawing of the congressional map by North Carolina’s GOP-led legislature in the wake of the 2020 Census, which was struck down by the state supreme court as an extreme partisan gerrymander that violated the North Carolina Constitution. The state’s Republican leaders asked the U.S. Supreme Court, which has a 6-3 conservative majority, to reinstate the voting lines that gave GOP candidates an advantage in most of the state’s 14 congressional districts.

At the heart of the dispute lies a little-known doctrine called the “independent state legislature theory,” which largely laid dormant for more than 15 years but was thrust back 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.

Under the theory, pushed by North Carolina Republican leaders, the Constitution grants near-exclusive authority to state legislatures for setting federal elections rules, without oversight from state courts to ensure those laws comply with the constraints set by state constitutions. 

Looming over the case are the ramifications of the Supreme Court endorsing the independent state legislature theory at a time when some Republicans have called into question the integrity of elections and, after the 2020 presidential election, Trump attempted to pressure state lawmakers in a broader campaign to challenge its outcome.

In oral arguments on Wednesday, Justice Elena Kagan said adopting the idea would reverberate widely, calling it a “theory with big consequences.”

“I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country,” she said. “You might think it gets rid of all those checks and balances at exactly the time when they are needed most.”

Kagan predicted that embracing the independent state legislature theory would allow legislatures to engage in the “most extreme forms of gerrymandering,” let state lawmakers enact restrictions on voting and eliminate voter protections, or even lead legislatures to grant themselves a role in the certification of elections, without review by state courts.

A version of the theory was invoked in 2000 by then-Chief Justice William Rehnquist in his concurring opinion in Bush v. Gore, and more than two decades later, three of the Supreme Court’s conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — have expressed support for the idea. A fourth, Justice Brett Kavanaugh, urged the court to hear a case raising the issue of whether state courts are powerless to review the actions of state legislatures in issues involving federal election rules and maps.

While a majority of the justices appeared wary of fully endorsing the idea that the Constitution vests near-total authority to state legislatures in federal elections, some of the court’s conservative members struggled to find a clear standard for determining when a state court has departed from judicial review and veered in policymaking, thus warranting intervention from the federal courts.

Neal Katyal, who argued on behalf of North Carolina voters and voting rights groups, said the standard for federal judicial review of state court decisions interpreting state constitutions is “sky-high” and “stratospheric.”

Noting that in some states, members of state high courts themselves run in partisan elections, Alito asked Katyal whether it “furthers democracy to transfer the political controversy” over redistricting from the legislature to elected state supreme court justices.

Katyal responded that yes, it does, since there are other checks on state courts available, such as Congress. 

Alito, along with Thomas and Gorsuch, appeared to echo prior sentiments about the power vested to state legislatures under the Constitution’s Elections Clause. But Chief Justice John Roberts, Kavanaugh and Justice Amy Coney Barrett asked difficult questions of both sides during the nearly three hours of arguments.

For North Carolina Republicans, the crux of their argument lies with the text of the Elections Clause, which provides that the times, places and 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.

Pointing to the history, text of the Constitution, and Supreme Court precedent, the GOP state lawmakers claimed the Constitution’s “carefully drawn lines place the regulation of federal elections in the hands of state legislatures, Congress, and no one else.”

In questions to attorney David Thompson, who argued for the North Carolina Republicans, Roberts noted that they acknowledge that state legislative action covered by the Elections Clause is subject to a governor’s veto — the governor being separate from the legislature — and said allowing the veto of those actions by the legislature “significantly undermines the argument” that the state houses have the power to do what they want. 

On the other side, the voting rights groups, North Carolina voters and state elections officials told the Supreme Court that founding-era history, post-ratification history, constitutional text, structure and Supreme Court precedent all cut against the Republicans’ position that state legislatures have absolute, unchecked 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 nonprofit organization argued in a brief.

The Justice Department sided with the voting rights groups in the case, and Solicitor General Elizabeth Prelogar warned during arguments that adopting the GOP-proposed theory would “sow chaos on the ground.” Prelogar said state elections officials would have to run two elections simultaneously — one for state elections under state constitutions, and another for federal elections — and unleash a flood of 11th-hour requests to the Supreme Court itself for intervention.

Katyal repeatedly sought to underscore the repercussions of a decision siding with the Republican lawmakers, saying such a ruling removing state courts from the process would be “opening Pandora’s box” and warning that “the blast radius by their theory starts at the size extra large.”

Experts, too, have said a decision endorsing the independent state legislature theory would have sweeping ramifications for election rules.

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, said Tom Wolf, deputy director of the Democracy Program at the Brennan Center for Justice. 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 case drew friend-of-the-court briefs from a slew of lawmakers, voting and civil rights groups, lawmakers, historians and scholars, and the opposition to the independent state legislature theory is forceful and bipartisan.

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 decision from the court is expected by the end of June.