At Least Four Supreme Court Justices Cosign Legal Theory That Existentially Threatens Fair Elections

In a dissent, justices floated a fringe legal theory that found favor among conservatives as Trump tried to contest the 2020 election.
Justices Kavanaugh, Alito, Gorsuch and Thomas. Getty Images/TPM Illustration

On the surface, the Supreme Court’s order in a Republican challenge to North Carolina’s redistricting maps earlier this week was a win for voting rights advocates. 

The majority refused to stay a congressional map drawn by the North Carolina Supreme Court after voters challenged the legislature’s version that heavily favored GOP candidates. That leaves the state court’s map in place, which is much fairer than the legislature’s concoction. 

But the dissent authored by Justice Samuel Alito and joined by Justices Neil Gorsuch and Clarence Thomas, along with, to a lesser degree, a concurrence from Justice Brett Kavanaugh, offer a dark indication as to where the right wing of the bench would like to go. The dissenters say that North Carolina Republicans had the stronger argument and likely would have won on the merits to get the court’s map invalidated. 

“That some of the justices rejected outright state court interpretations of state statutes is, frankly, a power grab by the Supreme Court,” Carolyn Shapiro, law professor and founder of Chicago-Kent’s Institute on the Supreme Court of the United States, told TPM. “It’s an astonishing shift of authority over election law from state courts to federal courts, but primarily to the Supreme Court.” 

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Kavanaugh writes that he wants to take up the case, or one like it, in the future, but that it’s currently too close to an election for the federal judiciary to intervene.

Gorsuch, Alito and Thomas also expressed their support in the dissent for the “independent state legislature theory,” which rests on an ultra-narrow and literal reading of a couple constitutional clauses. The Elections Clause of the Constitution gives state legislatures the power to dictate the “times, places and manner” of holding elections. The Electors Clause gives state legislatures the power to appoint presidential electors in the “manner” they choose.

The conservatives are interpreting those two clauses to empower state legislatures, solely, to the exclusion of state courts. Legislatures would get to craft voting regulation, redistricted maps, election rules — all without any judicial review. A maximalist embrace of the independent state legislature theory would mean that state constitution provisions and voter-passed initiatives on elections would not apply, and that state courts would have no place intervening in election litigation.

The theory is a wild break with the logic on which the Constitution is built, Douglas Spencer, an associate professor at the University of Colorado Law School, told TPM.

“The federal Constitution gives Congress the authority to regulate commerce,” he said. “Under this theory, there should be an independent Congress theory — but of course, the President can veto Congress’ bills. It’s very strange to read the word ‘legislature’ in such a way that it chews away all other checks and balances, whether it be the governor’s veto, a ballot referendum or the state Supreme Court.” 

While it reads as an egregiously tortured interpretation of the Constitution to many legal experts, one that would overturn decades of precedent, it’s a theory the right-wing legal world has been cultivating for years. 

It reared its head most prominently in Bush v. Gore, where three justices including Thomas endorsed it. It then lay largely dormant for 20 years, with the exception of an appearance in a redistricting commission case out of Arizona in 2015. 

But it came roaring back in 2020, on the back of a flurry of election-related lawsuits as former President Donald Trump and his various stooges tried to overturn the election. Kavanaugh, writing on one of these lawsuits, resurrected the minority views of two decades prior.

“As Chief Justice Rehnquist persuasively explained in Bush v. Gore,” Kavanaugh wrote, “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

Now, two years later, three more justices — Alito, Thomas and Gorsuch — have full-throatedly supported the independent state legislature theory. Kavanaugh seems to as well, based on his writing in a couple 2020 elections cases. 

Roberts wrote a fiery dissent in the Arizona redistricting case of 2015, but has expressed a fairly nuanced view on the matter. He seems to have a problem with federal courts overriding state legislatures, but less hostility to state courts exercising power over them. He also was part of the group of justices that guaranteed state courts as a venue for redistricting challenges when the Court shut down the federal judiciary from hearing partisan gerrymandering cases in 2019 — though Alito, Gorsuch, Thomas and Kavanaugh, who joined him in that opinion, seem to have no qualms about now also barring state courts from hearing redistricting cases under the independent legislature theory. 

The real mystery on the court is Justice Amy Coney Barrett. She helped George W. Bush’s legal team during the Bush v. Gore litigation, but that tenuous connection is the only data point we have about where she might stand on this issue. She did not write in the North Carolina decision, instead presumably joining Roberts and the three liberals in turning down the stay request (the order came down on the shadow docket, so no one knows exactly how the justices voted).

“A lot is riding on how Justice Barrett views decades of judicial precedent and her love for free and fair elections in a representative democracy,” Dave Daley, former editor of Salon and author of two books on redistricting and voting rights, told TPM.

If enough justices embrace this theory, it’ll give state legislatures — which skew Republican thanks to down-ballot investments and aggressive gerrymandering — free rein over redistricting, voting rules and, most disturbingly, elections. 

“It is effectively an avenue to free state legislatures from the supervision of state courts, which play a critical check and balance on the power of those legislatures,” Daley added. “All you have to do is look at state legislatures around the country to get a really good sense of what the future would look like if these legislatures are free to enact election law with impunity.”

Read the opinion here:

Correction: The original version of this piece said that multiple justices currently serving joined the concurrence in Bush v. Gore. Justice Thomas was the only one to join it who is still on the court.

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