The US supreme court shot down a fringe legal theory that observers said posed a considerable threat to democracy, ruling that state courts have the authority to weigh in on disputes over federal election rules.
“When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review,” Chief Justice John Roberts wrote for the majority. “Our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution.”
The decision was 6-3, with Roberts writing the majority opinion. Conservative justices Brett Kavanaugh and Amy Coney Barrett also joined the court’s three liberal justices, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson in the ruling.
The ruling is a blow to North Carolina Republicans who had asked the court to embrace the so-called independent state legislature theory – the idea that the US constitution does not allow state courts to limit the power of state legislatures when it comes to federal elections. There was deep concern that embracing such an idea would upend US elections, essentially giving legislatures a blank check to write election laws without oversight from state courts. It would have been a massive win for Republicans, who control more state legislatures than Democrats do.
The court’s decision means that state courts can continue to weigh in on disputes over federal election rules. State courts have become increasingly popular forums for hearing those disputes, especially after the US supreme court said in 2019 that federal courts could not address partisan gerrymandering.
“There are still questions that have yet to be worked out, and there will be litigation,” said Carolyn Shapiro, a professor at the Chicago-Kent College of Law, who has written extensively about the theory. “The court has absolutely put a nail in the coffin of the most extreme versions of the ISLT.”
But while state courts have the authority to review federal election rules, Roberts wrote, that power is not unlimited. The court declined to address where that limit might be, saying that the issue had not been raised in the case. “Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein,” he 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.”
But the court’s decision not to lay out when state courts can be second-guessed is likely to give rise to disputes in the future.
“This gives the US supreme court the ultimate say over the meaning of state law in the midst of an election dispute,” Richard Hasen, an election law expert at the University of California Los Angeles, wrote in a blogpost. “This is a bad, but not awful, result.”
Other observers conceded that the supreme court had left some uncertainty about when it might second-guess a ruling from a state court. But they said the justices had signaled there would be a high bar for when they would do so and that such intervention would likely be rare.
“The court did punt on that question today, but I do think it’s important to remember that these sorts of evasion inquiries exist in other areas of law, and they’re incredibly difficult to satisfy,” said Cameron Kistler, a lawyer for Protect Democracy, a watchdog legal group. “The supreme court’s going to want to draw a pretty firm line here because the last thing they want is for every election law, every determination by a state official in every state, for it to present a federal issue.”
Although the case is a huge legal win for voting rights groups, it is unlikely to change much practically in North Carolina, where the case originated. State Republicans brought the case to the US supreme court after the North Carolina supreme court struck down its congressional and state legislative maps last year. Republicans subsequently won control of the court and reversed the months-old ruling, giving Republicans the power to gerrymander their maps.
“Fortunately the current supreme court of North Carolina has rectified bad precedent from the previous majority, reaffirming the state constitutional authority of the NC general assembly. We will continue to move forward with the redistricting process later this year,” Tim Moore, the GOP speaker of the North Carolina house, said in a statement.
That reversal nullified the case before the US supreme court, Justice Clarence Thomas wrote in a dissenting opinion that was joined by Samuel Alito, in part, and Neil Gorsuch. Several of the plaintiffs in the case, as well as the justice department, told the justices the dispute was moot after the reversal.
“The question is indisputably moot, and today’s majority opinion is plainly advisory,” Thomas wrote. “This is a straightforward case of mootness. The federal defense no longer makes any difference to this case – whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same.”
Thomas also wrote that he was unpersuaded by the majority’s rationale for rejecting the independent state legislature theory. He also said he was concerned that the vague reference to the limit of a state court’s power would cause confusion down the line.
“Judging from the majority’s brief sketch of the regime it envisions, I worry that today’s opinion portends serious troubles ahead for the Judiciary,” he wrote. “In many cases, it is difficult to imagine what this inquiry could mean in theory, let alone practice.”
Civil rights groups praised the court’s ruling.
“This is a historic victory for the people of North Carolina and for American democracy. Today, the US supreme court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators. Now, we must ensure our state courts fulfill their duty to protect our freedoms against attacks by extremist politicians,” Bob Phillips, the executive director of Common Cause North Carolina, one of the challengers in the suit, said in a statement.
“The independent state legislature theory is a dangerous, fringe legal theory that has no place in our democracy,” Abha Khanna, a lawyer for some of the plaintiffs, said in a statement. “In its most extreme form, the Independent State Legislature Theory could have weakened the foundation of our democracy, removing a crucial check on state legislatures and making it easier for rogue legislators to enact policies that suppress voters and subvert elections without adequate oversight from state court.”
Kamala Harris also issued a statement on the decision.
“Today’s decision preserves state courts’ critical role in safeguarding elections and protecting the voice and the will of the American people. We know that more work must to be done to protect the fundamental right to vote and to draw fair maps that reflect the diversity of our communities and our nation,” the vice-president said. “The president and I will keep fighting to secure access to the ballot box, but we cannot do this alone. We continue to call on Congress to do their part to protect voters and our democracy and pass the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act.”
Republicans spun the ruling as a sort of victory, saying that it would rein in state courts from overriding state legislatures. The case “should serve as a warning to state courts inclined to reach beyond the constitutional bounds of judicial review. This is a first, positive step toward reining in recent overreaches of state courts,” said Adam Kincaid, the president and executive director of the National Republican Redistricting Trust, a Republican group focused on redistricting.
Richard Pildes, an election law scholar at New York University, said the court’s ruling could lead to confusion down the line.
“It’s critical that the rules for elections are clear and specified in advance, including the rules that follow from judicial doctrine,” he wrote in a blogpost. “The court’s decision eliminates the most extreme versions of the ISLT, but we are going to see constant litigation around this issue in the 2024 elections until a more clear sense of the boundaries on state court decision-making.”
