The Supreme Court case that could reshape US elections

The U.S. Supreme Court in its upcoming term will consider a case that could radically reshape how presidential and congressional elections are run in America.

The case, Moore v. Harper, centers on the controversial “independent state legislature” theory, which holds that a literal reading of the U.S. Constitution gives state legislatures the final say in regulating votes for federal office, unchecked by governors, state courts, or provisions in state constitutions.

If approved by a Supreme Court majority, the most extreme reading of this theory could upend how many states draw their congressional districts. It could result in different ballots, different means of voting, and even different polling places for federal and state elections.

Conservative groups supporting the independent state legislature theory say that it is fairer for elected officials to write election rules, rather than unelected judges or administrators.

For the Supreme Court, Moore v. Harper is “a chance to restore stability by upholding the rule of law and clarifying that lawmakers, not courts and bureaucrats, make law,” said Jason Snead, the executive director of Honest Elections Project, earlier this month in an announcement on the case.

Critics say the theory runs counter to historical practice, removes constraints on legislatures’ actions, and could upend and sow confusion about democracy’s basic building block, the vote.

“Any version of this theory is meritless,” says Eliza Sweren-Becker, counsel in the Voting Rights and Elections Program at the Brennan Center for Justice.

What is the independent state legislature theory?

The U.S. Constitution delegates the power to hold federal elections to the states, under congressional supervision. At issue with the independent state legislature theory is how much power has been delegated, and to whom.

This turns on two key constitutional clauses. One, the elections clause, states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

The second is the presidential electors clause, which reads, “Each State shall appoint in such Manner as the Legislature thereof may direct, a Number of Electors.”

The key question here is: What did the Founders mean by “Legislature”?

The meaning in traditional use is that “Legislature” refers to a state’s entire lawmaking process. That means a legislature can pass state election law – but that law is subject to a governor’s veto. State courts can strike it down if they judge it violates a state’s constitution. Citizen referendums can alter it, if the state allows that practice related to other laws.

Proponents of the independent state legislature theory take a narrower view, saying that “Legislature” means just that – the legislature, and no other governmental institution. Neither governors nor courts nor state constitutions have a say in laws governing federal elections, in this approach. 

Where did the theory come from?

The roots of the theory lie in the disputed 2000 presidential election between George W. Bush and Al Gore. In a concurrence to the Supreme Court’s final Bush v. Gore decision, which declared George W. Bush president, Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, advanced a version of the independent state legislature approach that would have limited state court powers to interpret legislature-passed measures in some instances.

Proponents of the independent state legislature theory say that it has antecedents in U.S. history. 

But there is little scholarly evidence that prior to 2000 anything resembling the independent state legislature theory was much of a legal issue in the U.S., according to Richard Pildes, a constitutional law professor at the New York University School of Law.

“The overall weight of historical practice supports the position that state constitutions can constrain state legislatures in the exercise of their ordinary lawmaking powers under the Elections and Electors Clauses,” wrote Professor Pildes in a response to questions from the House Committee on House Administration in August.

However, prior to the 2020 election, Justices Thomas, Samuel Alito, and Neil Gorsuch hinted at support for a version of the independent state legislature theory in statements concerning a Pennsylvania Supreme Court decision to extend the deadline for receiving absentee ballots due to the pandemic. The court’s action overruled a deadline set by the legislature in Pennsylvania’s election laws.

“There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” wrote the justices in an opinion. 

What is Moore v. Harper about?

Moore v. Harper is a challenge to North Carolina’s congressional maps.

In the case, members of the North Carolina legislature are asking the Supreme Court to reinstate the district maps they drew with 2020 census data, and that the North Carolina courts struck down as a partisan gerrymander that violated the state constitution’s guarantee of free and fair elections. 

The state courts adopted instead new maps drawn by three court-appointed experts.

The independent state legislature theory is at the center of the case. The question plaintiffs presented to the court was whether a state’s judicial branch may nullify legislative regulations governing the manner of holding elections for senators and representatives, and replace them with regulations of the court’s own devising based on “vague state constitutional provisions.”

“The State Supreme Court transformed itself from a judicial body ... into an ersatz legislature that enacts its policy preferences through sheer force of will,” said the National Republican Redistricting Trust, a group that coordinates GOP redistricting efforts, in a friend of the court brief filed in the case. 

Critics hold that the legislature’s original maps were not just a gerrymander, but an egregious one. If the popular vote for Congress in the state had split 50-50 between Democrats and Republicans, 10 of the state’s 14 members of Congress would have been GOP, they say.

Reinstating the maps “would effectively allow the North Carolina legislature to violate its state constitution,” says Ms. Sweren-Becker.

What might happen to elections?

If the Supreme Court affirms a belief that “Legislature” means only “legislature” and the independent state legislature is not just a theory, but the law, organization and administration of the nation’s elections could be overturned.

There would be clear limits to the change, however the justices draw the new lines. It would affect only federal elections directly, not state and local ones, says Derek Muller, a law professor at the University of Iowa School of Law and an expert on U.S. elections, in an email.

State legislatures would still be subject to the U.S. Constitution and federal law. This last point means state legislators would not be empowered to simply ignore a popular vote, and choose its own party’s presidential electors after a losing election.

Still, “it could be quite disruptive, depending on how far the court goes and how far legislatures choose to go with it after the fact, on a wide variety of routine election laws,” he says.

It is true that the theory would not just allow legislators to pick a new winner if they do not approve of the voters’ choice, says Ms. Sweren-Becker.

“It’s not a license to coup,” she says.

But it could override some efforts to control the political manipulation of congressional maps, such as state redistricting commissions. And it could split election administration in two, with one set of laws and regulations for state and local votes, and another for federal elections.

For instance, legislators could ban ballot drop-boxes, no-excuse mail-in voting, and early voting for presidential and congressional elections in the face of opposition from a state’s governor or courts. A governor’s veto or a court decision in turn could maintain those things in gubernatorial and state legislative elections.

Election officials might have the difficult and confusing job of administering a two-tier voting system.

Federal courts could be inundated with election litigation previously handled at the state and local level. Critics of the theory also worry that it could become an excuse, a means for legislators to push the boundaries of their legal powers, particularly in presidential elections.

“State legislatures might try to insert themselves into some state of the vote-counting process; here the legislature would claim that is helping to determine which candidate did in fact win the popular vote,” said Professor Pildes of New York University in his written response to the Committee on House Administration.

What’s next?

In March, North Carolina legislators filed an emergency appeal to have their congressional maps reinstated for 2022 elections. The Supreme Court denied that appeal. 

But in June, high court justices agreed to hear a regular appeal in the case in its 2022-2023 session. Over the summer, numerous interested parties on both sides filed friends of the court briefs in Moore v. Harper, including in September the Republican National Committee in favor of the plaintiffs, and a group of chief justices of state supreme courts, who argued against barring state court review of state election laws.

After hearing oral arguments, the Supreme Court will likely issue a decision by July of next year.