Upholding democracy? Supreme Court strikes down election theory.

The current Supreme Court has not been shy about shaking up major aspects of American life, as shown by last year’s decision striking down federal protection of a woman’s right to obtain an abortion. But on Tuesday, a majority of justices refrained from taking a big step that could have radically reshaped a core part of U.S. politics: how presidential and congressional elections are run.

By a 6-3 vote, the high court rejected a legal theory that state legislatures have almost unlimited power to decide the rules for federal elections and draw highly partisan gerrymandered congressional district maps.

Proponents of the “independent state legislature” theory have argued that a literal reading of the U.S. Constitution gives state lawmakers the final say in regulating votes for federal office, unchecked by governors, state courts, or provisions in state constitutions.

The court’s ruling on this issue in the case of Moore v. Harper may need to be placed in the larger context of recent pressures on American democracy, say some legal experts. These include continued false claims of fraud in the 2020 and 2022 elections, threats against local election officials, and the lingering effects of the Jan. 6, 2021, Capitol riot.

“One way of reading this opinion is the court is consciously declining to open a new front in the war upon democracy at a time in which democratic ideals are coming under a considerable amount of stress,” says Aziz Huq, professor of law at the University of Chicago Law School.

Independent state legislature theory

The dispute that became Moore v. Harper stemmed from a map of congressional districts drawn by the North Carolina legislature following the 2020 census. The state’s Supreme Court initially rejected the map as a partisan gerrymander. As drawn it seemed likely to produce a mix of 10 Republican and four Democratic members of Congress in a state where the number of voters of each party are evenly balanced.

Republicans seeking to restore the GOP-friendly map requested that the U.S. Supreme Court intervene, arguing that the state court did not have the power to act. They pointed to the exact wording of the Elections Clause of the U.S. Constitution, which states that the time and manner of congressional elections “shall be prescribed in each State by the Legislature thereof,” subject to alteration by Congress.

A literal reading of this text would find that state institutions other than legislatures should have no say in federal political arrangements, argued North Carolina GOP members.

The case attracted wide attention because several of the most conservative justices in past rulings have expressed interest in this independent state legislature theory.

But Chief Justice John Roberts, writing for the majority, rejected that argument. 

“The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” Chief Justice Roberts wrote.

No two-tier system

Democrats, voting rights advocates, and some legal experts praised the decision as respectful of the status quo. Many had worried that a court approval of the more extreme interpretations of the independent state legislature theory could have played havoc with election arrangements across the country, particularly in states where either party has solid legislative control.

The theory threatened the current system of unified elections, with federal, state, and local votes conducted at the same time, says Carolyn Shapiro, professor at the University of Chicago-Kent College of Law. 

Legislators on their own could have banned ballot drop-boxes, no-excuse mail-in voting, and early voting for presidential and congressional elections in their states in the face of state governor or court opposition. A governor’s veto or a court decision in turn could have maintained those things for gubernatorial, state legislative, and municipal elections.

“We would have been left with a two-tiered system that would have been very difficult to operate,” says Professor Shapiro.

With high court approval, the independent state legislature approach also might have threatened some efforts to control the political manipulation of congressional maps, such as court oversight and state redistricting commissions.

The majority opinion took pains to document evidence that state legislatures had always been subject to oversight from governors and courts, even prior to the Constitutional Convention of 1787.

This history showed that the “special status of the legislature is nonsense,” said Tom Wolf, deputy director of the Democracy Program at the Brennan Center for Justice, in a press briefing on Tuesday.

“A majority of the court has affirmed over a century of legal precedent on which [the independent state legislature] theory would have required a reversal to move forward,” said Mr. Wolf.

What happens next?

While important in legal terms, the decision in Moore v. Harper will have little practical effect in the state that brought it to the Supreme Court. The North Carolina Supreme Court, with a new majority of Republican judges, has undone its redistricting decision. So the dispute between state lawmakers and state judges at the center of the case has been resolved. 

Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch would thus have dismissed the case as moot rather than rule on the merits of the independent state legislature theory.

The decision also did suggest that there are legal limits to the power of state courts to police legislative decisions on congressional and presidential votes.

State courts “do not have free rein,” Chief Justice Roberts wrote for the majority.

The 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,” Chief Justice Roberts continued.

The majority decision makes little effort to define what “ordinary bounds” might mean. This loophole thus might lead to further litigation on the issue for future elections.

“The court does leave some potential breathing room for federal court review of a state court decision that completely goes off the rails,” says Steven Schwinn, professor at the University of Illinois Chicago School of Law.

If the Supreme Court wants another chance to define what it means, another redistricting case, this one from Ohio, is pending.