Marisa Wright is a US National Correspondent for JURIST, and a 2L at Harvard Law School.
On Wednesday, December 7, the US Supreme Court will hear oral arguments in a case involving a fringe legal idea called the independent state legislature theory that poses a threat to the current system of election administration in the United States. Moore v. Harper stems from a challenge to North Carolina’s congressional and legislative redistricting plan as unconstitutional partisan gerrymanders.
When the North Carolina Supreme Court struck down the redistricting plans under the state constitution in February 2022, the North Carolina General Assembly submitted remedial legislative and congressional plans to a state superior court. That court ultimately accepted the State’s remedial legislative plan but rejected the remedial congressional plan because it failed to meet the requirements of the North Carolina Supreme Court’s previous ruling. The superior court instead adopted a congressional plan created by the court-appointed special masters to be used for the 2022 midterm congressional elections.
The North Carolina General Assembly immediately appealed that ruling. Although the body attempted to use what is known as the Court’s “shadow docket” to get an emergency stay of the lower court’s ruling, the Supreme Court denied the emergency petition but went on to agree to hear the case on its regular docket last June.
While the permissiveness of the State’s redistricting plans has important bearing on future elections by itself, the broader significance of this case could result in vast changes to election administration in the United States because the defendants in the case are asking the Court to adopt the independent state legislature theory. This theory posits that the Elections and Presidential Electors Clauses in the US Constitution give state legislatures exclusive power to regulate elections without limits from the state constitution, state courts, or independent commissions. It comes from the fringe of the conservative legal movement and has been rejected by the Court several times in the past.
As far back as 1916, in Davis v. Hildebrant, the Court “reasoned that the word ‘legislature,’ as it is used by the relevant provisions of the Constitution, does not refer exclusively to the elected body of representatives who make up the state’s legislative branch. Instead, it refers more broadly to any individual or body that possesses some part of the power to make laws within a state — what the Court referred to as the ‘legislative power.’” Even where not done so directly, the Court has repeatedly repudiated the underpinnings of the theory in cases like Smiley v. Holm (1932), Bush v. Gore (2000), and Arizona State Legislature v. Arizona Independent Redistricting Commission (2015).
In normal circumstances, the Court’s previous repudiations of the independent state legislature theory would counsel in favor of following the principle of stare decisis, which suggests the Court should not overturn previous decisions except in extreme circumstances. Members of the Court’s current conservative supermajority, though, have expressed support for the theory over the years. In Bush v. Gore, Justice Thomas joined a concurring opinion written by then-Chief Justice Rehnquist that adopts the posture put forth by the theory. In a 2020 case, Justice Gorsuch wrote in a concurring opinion that the “Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.” Justices Alito and Kavanaugh have also seemed to signal support for the theory.
Voting and civil rights advocates have been raising the alarm about the possibility of the Supreme Court adopting a maximalist position of the independent state legislature theory because it could have drastically negative implications for administration of elections. An amicus brief submitted to the Court by current and former election administrators warns about the consequences of accepting the theory: opening up numerous state laws, constitutional provisions, administrative rules, and ballot measures to new federal litigation; severely limiting the ability of state executive officials, like governors, secretaries of state, or local administrators, to issue orders dealing with unforeseen circumstances, such as natural disasters; and creating confusion and chaos in elections by producing two different sets of rules for state and federal elections.
The key reason the independent state legislature theory poses a major threat to free and fair elections is that it gives state legislatures, which are heavily gerrymandered, total control over election-related laws and regulations. The only oversight to their actions would be from federal courts, but with the invalidation of state constitutional provisions, federal courts would only be able to use federal laws to invalidate the actions of state legislatures, no matter how egregious. Only having federal laws as a tool to limit the broad power of state legislatures is a problem because the most powerful federal election and voting protections—such as the Voting Rights Act of 1965—have been whittled down by the Supreme Court in recent years. This means that federal courts only have limited tools to constrain state legislatures.
Some state legislatures are already exhibiting extremist tendencies, and with such limited oversight under this theory, they would be able to pass nearly any election-related law, including those that suppress votes and advantage political allies. These actions might include adopting maps with extreme partisan gerrymanders (which tend to overlap with racial gerrymanders), prohibiting absentee voting, limiting the location and number of polling places, and more. Even more worryingly, state legislatures could revoke the delegation of power to the people to elect a president by voting for the presidential electors of their candidate of choice, so long as they do so before an election. To be sure, without changing these types of laws before an election, state legislatures would probably not be able to overturn the results of a free and fair election by directing electors for the candidate that did not win the election in the state.
Another major reason to worry about the Court adopting the independent state legislature theory is that doing so would result in “bifurcated bodies of policy—one for federal elections and another for state and local elections” by “[n]ullifying hundreds of laws, but only for purposes of federal elections.” Chaos and confusion would be rampant in election administration, which hurts already overburdened election workers and creates the risk of suppressing votes from voters who don’t have the time or ability to navigate the already-complex election system.
All these concerns, in addition to the multiple legal precedents rejecting the independent state legislature theory, should mean it’s roundly rejected again. And yet, we’ve seen this Court repeatedly toss aside precedent — just from its last term, Dobbs v. Jackson Women’s Health Organization, Kennedy v. Bremerton, and New York State Rifle & Pistol Association, Inc. v. Bruen all fit this trend. The Court’s posture in oral argument on Wednesday may indicate just how far it’s willing to go on matters of extreme changes to how elections are run in the United States.