On Thursday, the Supreme Court agreed to hear a case which could fundamentally change the way federal elections are conducted. The legal theory at issue would allow state legislatures to make the rules for federal elections without supervision from state constitutions and courts.
This theory is also known as the “independent State Legislative Theory”. It stems from Article I of Constitution’s election clause. It states, “The time, place, and manner in which senators and representatives are elected shall be determined by each state’s legislature.”
The theory’s proponents argue that the clause grants state legislatures the power to regulate federal elections without being restricted by state constitutions or courts. A majority of the Supreme Court would agree, which would weaken state courts and remove judicial oversight of state election.
Professor Richard Hasen, an expert in election law at the University of California Irvine, says that “taken to its extreme, independent state legislature doctrine could cause an earthquake in American electoral law and fundamentally alter power within states and provide an avenue to subvert electoral results.”
This theory was presented to the court by the court in North Carolina, where the state supreme Court revoked the drawing of new congressional districts lines by the state legislature. The court found that reapportionment was an extreme partisan manipulation that violated the state constitution. The court also noted that both the state constitution as well as the state legislature had allowed judicial review of congressional redistricting planning.
The Republican Speaker of North Carolina House of Representatives, along with other GOP legislators, appealed to U.S. Supreme Court. They argued that redistricting plans can only be altered by the legislature and not the state supreme courts.
Three conservative U.S. Supreme Court justices first invoked the independent state legislature theory in the famous Bush v. Gore case, which handed George W. Bush the 2000 election victory. The three used it to support the election of a Republican presidential slate.
The North Carolina case is an example of how the Republican-dominated state legislature invokes it to draw maps in favor of the GOP.
Trump supporters attempted to evade the legitimacy of the 2020 election outcome by invoking the independent state legislature theory, which was aEUR” unsuccessfully. Some Trump supporters in Arizona used the theory to call for decertification for the state’s voters. Virginia Thomas, wife of Justice Clarence Thomas was one of those who sought decertification.
Thomas is one among four conservatives who support the independent state legislature theory. Justices Samuel Alito and Neil Gorsuch are the others. Kavanaugh was part of the legal team that supported then-Gov. Bush after the 2000 election. Bush v. Gore was often called a ticket “for that train only” and it was not cited in any Supreme Court decision. It was not cited in any Supreme Court case until 2020 when Kavanaugh (then a Justice on the Supreme Court) cited it in a Wisconsin election case that dealt with absentee ballot rules at the peak of the pandemic.
Kavanaugh stated that the court should “carefully consider” the issue of an independent state legislature in the North Carolina case. This was in a previous iteration. Neil Gorsuch, Clarence Thomas, and Samuel Alito went one step further by declaring that “there must be some limit to the authority of state court’s to countermand actions taken state legislatures when they are prescribing rules regarding the conduct of federal election.”
It is unclear where the court will land on this matter. Chief Justice John Roberts, who wrote for the court’s five most conservative justices, stated that one of the checks against partisan gerrymandering was that the state courts can continue to supervise congressional redistricting plans.
Another case is relevant. In 2015, the court upheld Arizona’s right to attempt to make redistricting less partisan by creating an independent commission to draw congressional districts.
Justice Ruth Bader Ginsburg, for the majority, stated that “the animating principle in our constitution is the people themselves as the originating source all the powers of government.” “Nothing [in the election clause] instructs, and this court has never held,” that a legislature can enact laws “in disregard of provisions of the state constitution.”
New scholarship supports this idea. It suggests that people did not understand the term “legislature”, as they do today, when it was first created. According to an article due to be published in The Supreme Court Review, the “legislature” meaning at the founding was one that was created and restricted by state constitutions. Vikram Amar (dean of the University of Illinois’ law school) and Akhil Amar (law professor at Yale), are the authors.
Theirs won’t be the last word.
Moore v. Harper will be heard this fall, after the midterm elections.
