After knee-capping the federal government’s ability to address greenhouse gases and other national regulatory issues Thursday, the Supreme Court announced that it would hear a case next term that could effectively eliminate the role of state courts and dramatically increase the power of state legislatures in questions of federal election law, a potentially huge win for the right in the wake of Donald Trump’s 2020 election theft attempt.
The court on Thursday granted certiorari — meaning it will consider the case next term — to Moore v. Harper, a North Carolina case that centers on the so-called “Independent State Legislature” theory, or the idea that, because the Constitution delegates certain election responsibilities to “the legislature” of the various states, state courts should have no ability to check those legislatures when they violate voters’ rights.
In Moore v. Harper, North Carolina Republicans argued that the left-leaning North Carolina Supreme Court overstepped its authority under the U.S. Constitution when it struck down gerrymandered congressional districts — a vital check on power grabs that state courts around the country have used, to varying degrees of success, during this year’s redistricting cycle.
But the Independent State Legislature theory goes far beyond just redistricting, and if given credence by the Supreme Court could allow legislatures near unchecked authority on everything from disputes over election results to rules surrounding voting.
Four of the court’s conservative justices expressed openness to the idea earlier this year, but the court’s majority decided to wait to address the case.
In effect, the court appears prepared, if it sides with North Carolina Republicans, to dramatically restructure the way federal election questions are addressed in court, funneling thorny issues up the federal judiciary to the Supreme Court itself — “a power grab by the Supreme Court,” as Carolyn Shapiro, law professor and founder of Chicago-Kent’s Institute on the Supreme Court, told TPM in March.
“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,” Jon Sherman, litigation director and senior counsel at the Fair Elections Center, said earlier this month.
The case could spell a decrease in the quality of small-d democracy around the country: The right-wing aspirations spelled out in the Independent State Legislature theory would be most impactful in states where left-leaning state officers elected by the popular vote — governors, state Supreme Court justices — are silenced in favor of right-wing legislatures that have benefitted from wildly gerrymandered districts.
State ballot measures, such as those creating independent redistricting bodies to create fairer districts free of partisan gamesmanship, could also be targeted with fresh lawsuits.
The Supreme Court justices eager to the hear the case earlier this year appeared willing to twist themselves into yogic pretzels of legal interpretation in order to empower themselves and right-wing state legislatures.
“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,” Justice Samuel Alito wrote at the time. “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.”
Rick Hasen, the UC Irvine election law professor, said that view, taken to its quite-plausible extreme, could aide future election theft attempts by state legislature dissatisfied with election results.
“Suppose a state agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate,” Hasen wrote Thursday. “If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip.”
The legal theory first popped up in a concurrence written by then-Chief Justice William Rehnquist in the court’s infamous Bush v. Gore decision in 2000, which stopped the recount of Florida’s votes in that election and handed the presidency to George W. Bush. Rehnquist wrote that though the Supreme Court generally deferred to state courts on the interpretation of state law, “there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.”
In 2015, Arizona’s Republican legislature unsuccessfully argued in the Supreme Court that the state’s independent redistricting commission, which was created by a statewide constitutional amendment vote, had unconstitutionally usurped the legislature’s authority under the U.S. Constitution. In his dissent, Chief Justice John Roberts wrote, “The people of Arizona have concerns about the process of congressional redistricting in their State. For better or worse, the Elections Clause of the Constitution does not allow them to address those concerns by displacing their legislature.”
On Thursday, Hasen warned that the court could pave the way for radical new election decisions.
“Buckle up!” he wrote. “An extreme decision here could fundamentally alter the balance of power in setting election rules in the states and provide a path for great mischief.”