The Supreme Court will hear a case this term that could give state legislatures unprecedented power over federal elections and the laws that govern them.
In Moore v. harpistsNorth Carolina Republicans argue that the state Supreme Court overstepped its constitutional power when it struck down the legislature’s rigged constituencies as a violation of the state constitution.
Lawmakers argue that one reading of the federal Constitution, a fringe idea called the independent state legislature theory, empowers state legislatures to govern federal elections to the exclusion of state courts, clearly eradicating a critical check on the power of legislators. . The state judiciary is particularly indispensable in redistricting disputes, as the Supreme Court has barred partisan gerrymandering cases from being heard in federal court.
But the independent state legislature theory, if accepted by the right-wing majority, would not be limited to redistricting. It is based on a super-literal reading of two clauses of the Constitution: the Elections Clause that gives state legislatures the power to dictate the “times, places, and manner” of holding elections, and the Electors Clause that gives state legislatures states the power to appoint presidential electors in the “manner” they choose.
Proponents of the theory read the word “legislature” in both clauses to exclude all other machinery of government around legislators. In maximum interpretations, that means no state court authority over election-related laws passed by the legislature, no governor’s veto, no rules by the secretary of state, no voter-approved ballot initiatives , there are no restrictions of the state constitution, there is no independence. redistricting commissions.
The all-powerful state legislatures, and state legislatures alone, could draw maps, pass election laws, invent voter restrictions, all without limitation.
Some fear, in light of the Donald Trump-led efforts to nullify the 2020 election, that this theory could be used as a pretext for heavily-inclined state legislatures to oust legitimately elected presidential electors in favor of their chosen ticket. This specter looms even larger given that through manipulation, Republicans control, sometimes with large majorities, the legislatures in many states that wield disproportionate power in choosing the president.
Critics have denounced the theory as completely divorced from the founders. feeling toward state legislators, as well as a sham to their face: The federal government also gives Congress the power to regulate commerce, but no one interprets that power order as overriding the president’s power to veto congressional legislation. It also requires some mental contortion to believe that state legislatures are not actually bound by the state constitutions that created them.
However, we do have data points suggesting that at least four of the Supreme Court justices may sign off on the theory. Here’s what we know about what conservative justices think about the independent state legislature theory:
The Fanboys: Thomas, Alito, Gorsuch and Kavanaugh
These four have left significant evidence in their writings supporting the theory, often urging litigants to bring a case before the Court allowing them to address it.
Justice Clarence Thomas has been on board since the theory was first raised in the High Court, during Bush v. blood in 2000.
“In most cases, courtesy and respect for federalism compel us to defer state court decisions on questions of state law,” Chief Justice William Renquist wrote in a concurring opinion, along with Thomas and the late Justice Antonin Scalia, adding: “But there are some exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of the government of a State. This is one of them.”
In 2015, Thomas and Judge Samuel Alito dissented in a case in which the majority found that an independent redistricting commission, born out of a ballot initiative in Arizona, was constitutional. The Arizona legislature had sued, arguing that it was an illegal removal of its power over elections.
“If ‘constitutional tradition’ is the measuring stick, then it is difficult to understand how the Court approves a redistricting practice that had not been heard for nearly 200 years after the Constitution was ratified and that conflicts with the express constitutional mandate that electoral laws ‘be prescribed in each state by the legislature thereof,’” Thomas complained, also taking the opportunity to lament the right to same-sex marriage broadcast on top skin just a few days before.
Alito did not write independently on that case, but instead joined a fierce dissent authored by now Chief Justice John Roberts (more on him later).
But there is no doubt where Alito stands. His interest in the theory was made explicit in his 2022 dissent from the majority decision not to stay a map of Congress drawn up by the North Carolina Supreme Court (the same dispute that has become the case on the docket now). ), joined by Thomas and Gorsuch:
“If the language of the Elections Clause is to be taken seriously, there must be some limit on the authority of state courts to overturn actions taken by state legislatures when prescribing rules for the conduct of federal elections,” he wrote. “I think the applicants are likely to be able to show that the North Carolina Supreme Court exceeded those limits.”
Justice Neil Gorsuch also voiced his opinion directly, in a 2020 concurrence on extending Wisconsin’s absentee voting deadlines during the COVID-19 pandemic.
“The Constitution provides that state legislatures, not federal judges, state judges, state governors, not other state officials, have primary responsibility for setting election rules,” he wrote, lyrical about the state legislature as a more democratic body than its judicial counterpart.
He was joined in his settlement by Judge Brett Kavanaugh, who has occasionally been a bit more moderate than the other three.
But Kavanaugh also wrote separately on the Wisconsin case, giving the clearest shot at how he feels in a footnote.
“As Chief Justice Rehnquist persuasively explained in Bush v. blood …the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” he wrote.
The Conflict: Roberts
Roberts has been inconsistent in his position on the theory.
In 2015, he attacked Arizona’s independent redistricting commission in an opinion that seemed to fully endorse the idea.
“An Arizona ballot initiative transferred that authority from ‘the Legislature’ to an ‘Independent Redistricting Commission,’” he wrote. “The majority approve of this deliberate constitutional evasion by doing what the defenders of the Seventeenth Amendment did not dare: revise ‘the Legislature’ to mean ‘the people.’ The Court’s position has no basis in the text, structure, or history of the Constitution, and contradicts the precedents of both Congress and this Court.”
But just four years later, in the infamous case in which the conservative majority ruled that federal courts couldn’t hear claims of partisan redistricting, Roberts pointed to independent commissions as an acceptable option.
“In fact, many other states are restricting partisan considerations in redistricting through legislation,” he wrote. “One way they’re doing it is by putting the power to draw electoral districts in the hands of independent commissions.”
Critically, he also explicitly expressed his approval of the role of state courts in adjudicating such cases.
“Provisions in state statutes and state constitutions may provide standards and guidance for state courts to apply,” he wrote.
The Barrett Mystery
Justice Amy Coney Barrett is the only Conservative majority justice who has not weighed in on the theory.
As Dave Daley, former Salon editor and author of two books on redistricting and voting rights, told TPM: “Much depends on how Justice Barrett views decades of judicial precedent and her love of free and fair elections in a representative democracy”.