UPDATED: 27 JUN 2023 01:43 PM EST
The Supreme Court on Tuesday rebuffed a legal theory that argued that state legislatures have the authority to set election rules with little oversight from state courts, a major decision that turns away a conservative push to empower state legislatures.
By a 6-3 vote, the court rejected the “independent state legislature” theory in a case about North Carolina’s congressional map. The once-fringe legal theory broadly argued that state courts have little — or no — authority to question state legislatures on election laws for federal contests.
The court’s decision in Moore v. Harper closes the path to what could have been a radical overhaul of America’s election laws.
A particularly robust reading of the theory — which the court turned aside — would have empowered state legislatures to make decisions on all aspects of elections, from congressional lines to how people register to vote and cast a ballot, without any opportunity for challengers to contest those decisions in state courts under state laws or constitutions. Opponents of the theory argued that it could have led to unchecked partisan gerrymandering, and laws that would make it harder for people to vote.
Chief Justice John Roberts wrote the court’s opinion, joined by the three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, along with two conservatives, Brett Kavanaugh and Amy Coney Barrett. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
In doing so, the nation’s top court maintained the power of state courts to review election laws under state constitutions, while urging federal courts to “not abandon their own duty to exercise judicial review.”
Conservative legal activists backed by some GOP operatives had urged the high court to broaden the power of state legislatures, often under Republican control in recent years. A Supreme Court decision adopting the theory would have upended congressional elections — and potentially the presidential election — heading into 2024.
But the Supreme Court concluded that the U.S. Constitution allows state courts to continue to interpret state constitutions to put limits on lawmakers’ powers.
“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote, referring to the provision of the federal Constitution that formed the basis for the independent state legislature theory.
Roberts’ majority opinion does not give state courts free rein to impose any sort of limits on legislatures’ action. The chief justice offered a warning of sorts to state judges not to run wild, but the decision issued Tuesday left open the question of when such a state court ruling would go too far.
“The questions presented in this area are complex and context specific,” Roberts wrote. “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
Despite that caveat, the opinion represents a major defeat for proponents of the independent state legislature theory — in part, because Roberts won a six-justice majority for his opinion and effectively sidelined three of the court’s most conservative justices on the issue.
The court’s decision to issue a definitive opinion came as a surprise to some court watchers. The roots of the case were GOP legislators challenging a decision issued by the North Carolina state Supreme Court, which ruled that legislatively drawn lines amounted to an illegal partisan gerrymander. Ultimately, a court-drawn map was used for the 2020 elections.
The U.S. Supreme Court heard arguments in the federal lawsuit in December. But following those arguments, the state Supreme Court announced it would be rehearing its own recently issued decision, which came after the state court flipped from 4-3 Democratic jurists to 5-2 Republican judges in the November elections. The state court ultimately vacated its own previous decision, saying it would not adjudicate partisan gerrymandering. (The U.S. Supreme Court ruled in 2019 that federal courts cannot police partisan gerrymandering.)
The highly unusual decision by the state court to rehear and ultimately scrap its own ruling could have gutted the basis for the U.S. Supreme Court to decide the federal Moore case, but some parties urged the justices to nevertheless issue a ruling — an invitation the majority accepted on Tuesday.
Thomas argued in his dissenting opinion, joined in part by Alito and in full by Gorsuch, that the case was moot after the machinations by the North Carolina Supreme Court.
“The issue on which it opines — a federal defense to claims already dismissed on other grounds — can no longer affect the judgment in this litigation in any way,” Thomas wrote. “As such, the question is indisputably moot.”
Thomas also critiqued Roberts’ decision as vague and likely difficult for federal courts to enforce. “In many cases, it is difficult to imagine what this inquiry could mean in theory, let alone in practice,” the court’s longest serving justice wrote, joined only by Gorsuch in those warnings.
However, the dissenters did not offer a clear alternative standard nor did they declare that legislatures should be entirely immune from state judicial review.
Kavanaugh issued a concurring opinion Tuesday saying he would have laid out a specific standard to determine when state court rulings transgressed their proper bounds. He said he would have adopted a standard articulated by then-Chief Justice William Rehnquist in the 2000 presidential election case, Bush v. Gore, allowing federal courts to strike down state court rulings that “impermissibly distorted” state law “beyond what a fair reading required.”
At least four justices on the U.S. Supreme Court — the three dissenters and Kavanaugh — have in the past at least entertained some form of the independent state legislature theory in their writings. But during oral arguments, a majority of the court seemed unwilling to adopt a strong version of the theory.
All sides appeared to agree that, regardless of the outcome in the case, federal courts would still have the ability to review state election law changes that violate federal law or the federal Constitution.
