The voting rights legal community is holding its breath these days for the moment when the U.S. Supreme Court formally announces whether it will take a case that could fundamentally transform the way election laws work.
That’s no exaggeration: Election law scholars and litigators have called the debate in question — and its potentially calamitous outcome — the “800-pound gorilla,” “ a point of no return,” “the whirlwind,” and a “Republican blueprint to steal the 2024 election.” If the Court decides the way right-wing politicians would like it to, the result will be a transformed legal landscape for voting rights, affecting everything from gerrymandering to ballot initiatives to challenges over election results.
You may have heard of it before: The so-called “Independent State Legislature” theory, which in its simplest form asserts that state legislatures alone — without the checks and balances of state courts or state executive branch officials like secretaries of state — are in charge of congressional and presidential election rules in their states.
The specific case before the high Court is Moore v. Harper, in which North Carolina’s Republican-controlled legislature argues that the state’s more liberal Supreme Court violated the U.S. Constitution when it struck down some wildly slanted congressional districts.
The U.S. Supreme Court is expected to announce in the next few days whether it will hear the case, which would likely be scheduled for sometime in 2023. The legislature filed unsuccessfully for an emergency pause of the state Supreme Court’s decision earlier this year. And at the time, four justices expressed some openness to the novel legal theory. The idea has popped up in various forms since Bush v. Gore.
The argument relies on a strange reading of the U.S. Constitution’s Elections and Electors clauses, which name “the legislature” as the body deciding certain election rules — even though the state constitutions that created those legislatures have for centuries been interpreted by state courts.
The theory doesn’t have any grounding in American legal history. Combined with its potentially massive impact, the fact that the Supreme Court could validate the theory in a landmark case has left some observers searching for their bearings.
“The notion that the legislature should be construed as something divorced from enforcement of the state constitution — and that it should be the federal courts to protect the state legislature from the nasty state courts enforcing the state constitution — is a really bizarre prospect,” said Jon Sherman, litigation director and senior counsel at the Fair Elections Center, which tracks election administration issues and advocates for voting rights.
What’s On The Menu?
Don’t get bogged down in legalese: This is an effort to empower state lawmakers — who, as we’ve seen over the past couple years, are often eager to throw aside the will of their voters in favor of their own political whims — as well as the U.S. Supreme Court, where the 6-3 conservative majority has shown their hostility to voting rights.
And it would come at the expense of institutional checks in conservative states, like judges and ballot measures, that are often more small-d democratic than highly gerrymandered legislatures.
The North Carolina case offers the justices a chance to weigh in on the theory next year, when they’re less likely to be accused of politicizing an election year. Still, three conservative justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — were eager to get involved this past March.
“The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause,” Alito wrote in the dissent in the North Carolina case, arguing that the court should have stepped into the state fight and checked the state Supreme Court.
“And 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.”
A fourth justice, Brett Kavanaugh, wrote, “the issue is almost certain to keep arising until the Court definitively resolves it.”
A Tectonic Shift In Election Law
If the Supreme Court ultimately decides, in effect, that state legislatures reign supreme when it comes to election law, the consequences would be vast: State legislatures, free from the checks of state constitutions as interpreted by state judges, may feel more free to pursue undemocratic election maneuvers like the Trumpian effort to steal a second term in 2020.
In states where Supreme Court justices are elected, or appointed by elected governors, a small-d democratic check on highly gerrymandered legislators would be gone. Those state justices’ power would suddenly be radically curtailed, and the right-wing legislators would be even more empowered than they currently are.
The same goes for statewide ballot measures and constitutional amendments — such as multiple states’ amendments establishing independent redistricting commissions, or the movement to restore voting rights for former felons in Florida. These, too, would now be subject to lawsuits from right-wing legislators who, with the help of the conservative federal judiciary, could now decide that their own power had been improperly limited by those pesky voters.
But there are logistical hurdles as well: The Independent State Legislature theory, such as it is, only applies to federal races — the President and Congress — because it relies on the U.S. Constitution’s language for federal races. Hypothetically, therefore, a state court could find ballot drop boxes to be constitutional for local elections, while a federal court prohibits them for federal races in the same state — citing the state legislature’s authority.
The consequences, right now, are difficult to fathom. At a recent roundtable discussion hosted by the Brennan Center, a group of legal scholars explored the potential knock-on effects of effectively neutering state courts on federal election law questions.
Carolyn Shapiro, a law professor and founder of Chicago-Kent’s Institute on the Supreme Court, imagined the “unending litigation” if litigants realized they could now take their state-level legal battles up to the Supreme Court.
“The fact that it would be so disruptive in and of itself, I think is evidence that this is completely sui generis,” she said. “It comes out of nowhere, and has no basis in history or practice.”