“This would be the most disruptive opinion in election law — ground shaking, groundbreaking, revolutionary, whatever word you could use,” says Douglas Spencer, a law professor at the University of Colorado. "I think it would be worse than disruptive. I think it would be destructive."
The case, Moore v. Harper, will address North Carolina’s congressional map. The state Supreme Court held that the map drawn by the Legislature violated state constitutional provisions against partisan gerrymandering and replaced it with its own map. Republican legislators sued, seeking emergency relief in March — which the Supreme Court did not grant — but now they’ll get their hearing in the fall.
The case will address a previously obscure legal claim known as the independent state legislature theory. It holds that state legislatures — and only state legislatures — can set the rules regarding federal elections. The Elections Clause of the U.S. Constitution states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” subject to congressional review.
In their brief to the Supreme Court, North Carolina Republican legislators note that the “plain text” of the Constitution vests the power of election lawmaking in “’the Legislature’ of each state. It does not leave the states free to limit the legislatures' constitutionally vested power, or place it elsewhere in the states' governmental machinery.”
Critics of the independent state legislature (ISL) theory say this argument fails to hold water as a matter of history or constitutional interpretation. It’s been rejected by the Supreme Court in numerous cases, including two within the last decade. Even though the Constitution singles out “legislatures,” that’s always been understood to refer to the state’s entire lawmaking apparatus, including state courts, constitutions, governors with their vetoes and voters with their ballot initiatives.
“ISL is as made up as anything I know of out there in constitutional law,” says Vikram Amar, dean of the University of Illinois School of Law. “The Constitution uses the word ‘Congress’ 60 times, mostly not as an entity but part of a process. ‘Legislature’ is a shorthand for a lawmaking process, governed by the state constitution itself.”
Since the court agreed to hear the case on Friday, the theory has been described as “nutty” and “radical.” “This is quite literally where American democracy dies,” tweeted University of Denver political scientist Seth Masket.
The reason ISL critics are apoplectic is the potential the case has for allowing legislatures to override the will of the voters and pick the winners of presidential elections. “Under ISL, if a legislature announced today that it would pick electors, ISL would say that’s OK as long as they do it in advance,” Amar says.
A lot of dominoes would have to fall before something like that would happen. But legal scholars are concerned that the scenario — which was pursued by President Donald Trump’s lawyers in 2020 — could become a reality. “The fear of the extreme version of the independent legislature doctrine is that the legislature just rides roughshod over the law and appoints its own slate of electors,” says Michael Morley, a law professor at Florida State University.
Four sitting Supreme Court justices have expressed support for the independent legislature theory. Even if it rules in favor of the North Carolina General Assembly, it’s entirely possible the court will issue a narrow opinion. The justices could find, for example, that ISL applies only to redistricting. And Congress could pass a law saying it will allow non-legislative regulation of congressional elections (assuming Congress can pass anything, especially a potential partisan hot potato).
But once Pandora’s box opens up, anyone upset about an election outcome can sue to overturn it, questioning any rule or regulation that can’t be traced back directly to legislative action. It wouldn’t have to be about selecting electors; it could be a question about, for example, whether to count absentee ballots submitted based on rules promulgated by the secretary of state, rather than explicit state law.
The entire election system would be thrown into question. “Trump’s next coup will be much more respectable,” says Richard Hasen, an election law expert at UCLA. “It’s a lot harder to fight against arguments that fancy lawyers make in court that sound like they have a patina of legality, when what’s really going on is a power grab dressed up in legal clothing, which is what this would be.”
Limiting, Not Empowering Legislatures
In addition to the Elections Clause, legislatures are specifically mentioned by the Constitution’s Electors Clause: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
There are any number of long law review articles noting not only that the Founders were thinking about state lawmaking in its entirety and not just legislatures, but that they specifically wanted other forces to act as curbs on legislatures. “The Legislatures of the States ought not to have the uncontrolled right of regulating the times places & manner of holding elections,” James Madison wrote. “Whenever the State Legislatures had a favorite measure to carry, they would take care so to mold their regulations as to favor the candidates they wished to succeed.”
In the years immediately following the Constitutional Convention, at least a half-dozen states ratified state constitutions that included provisions about elections, making clear the contemporary understanding that election law was not the sole province of legislatures.
“The Founding generation understood that ‘legislatures’ would be subject to substantive state constitutional restrictions as well as constitutionally mandated lawmaking procedures,” wrote attorney Hayward Smith. (He coined the term independent legislature doctrine – which he intended to be pejorative – after the concept was floated by then-Chief Justice William Rehnquist in Bush v. Gore, the 2000 election case.)
In a 1916 case called Davis v. Hildebrant, the Supreme Court upheld a provision in the Ohio Constitution that gave citizens the ability to overturn election laws passed by the legislature through popular referenda. In 1932, in Smiley v. Holm, the court found that a governor can veto election laws as part of the state’s lawmaking function, notwithstanding the lack of any governors being mentioned in the Elections Clause.
Much more recently, the Supreme Court in 2015 turned back a challenge from Arizona legislators challenging an independent redistricting commission that had been created by a ballot initiative. “The dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation,” wrote Justice Ruth Bader Ginsburg.
Chief Justice John Roberts wrote the dissenting opinion in that case. “What chumps!” he wrote, suggesting that rather than passing an amendment, “all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people,’” a notion he derided as “a magic trick.”
Roberts expressed more sympathy to the idea that other entities could have a role to play in his opinion in Rucho v. Common Cause. In that 2019 case, the Supreme Court found that partisan gerrymanders were an inherently political matter that left federal courts with no role to play. “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void,” Roberts wrote. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”
This year, state courts have struck down congressional maps not only in North Carolina but Maryland, New York and Pennsylvania as gerrymanders that violated state constitutional requirements for fair elections. But state courts could be taken out of the game, depending on how the court rules on the independent legislature theory.
Itching for a Fight
Moore v. Harper might seem like an odd case for the Supreme Court to take to settle the ISL question. After all, North Carolina’s Legislature itself specifically gave state courts the right to review redistricting cases two decades ago. “The North Carolina state courts thus have not ‘taken it upon themselves to set’ federal elections rules — the state legislature itself designed a statutory redistricting regime that expressly contemplates the courts’ involvement,” the state Department of Justice wrote in a brief.
If the Supreme Court rules for the plaintiffs, that could thus call into question even decisions made by other actors, such as election officials, who were clearly acting under the direction of the legislature. But it’s clear that several justices have been itching to settle this question.
In a 2020 case blocking the Wisconsin Elections Commission's decision to extend an absentee ballot deadline due to COVID-19, Justices Neil Gorsuch and Brett Kavanaugh each wrote concurring opinions underscoring the mention of “Legislatures” in the Elections Clause. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote.
Justice Clarence Thomas seemed to explicitly invoke the independent state legislature theory in a 2020 Pennsylvania case regarding absentee ballots. “Several justices went out of their way to raise this issue in various opinions regarding the 2020 election,” says Morley, the Florida State professor.
When the court opted not to grant the North Carolina General Assembly’s emergency appeal in March, Justice Samuel Alito, joined by Thomas and Gorsuch, wrote that the court should have taken the case. “If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito wrote.
Kavanaugh agreed that this question needs to be resolved, but felt it was too important to be done through an emergency appeal. It required a full airing, he wrote, including briefs and oral arguments. That’s what the ISL now is going to get.
What It All Means
The court deadlocked, 4-4, on the Pennsylvania case, because Amy Coney Barrett had not yet been confirmed. In 2000, as part of the Republican team litigating the presidential outcome in Florida, Barrett argued against ISL in a dispute over absentee ballots. During her confirmation hearings, however, Barrett testified that she couldn't remember any specific role she played back then. Barrett’s current views on ISL are not known, but she has become part of a conservative majority that’s certainly shown itself unafraid of overturning precedent.
At this point, there’s no guessing whether the court will adopt an extreme version of ISL — saying that legislatures have the unfettered ability to do whatever they want regarding election law, including choosing their own electors — or something much more narrow. But any decision that blocks or limits other actors, such as governors or state courts, could have profound consequences.
If a legislature decided to allow only left-handed chiropodists to vote, it would presumably be blocked by federal courts on due process and equal protection grounds. But legal scholars say that legislatures left unchecked by state courts could certainly do or at least attempt things such as eliminating the right to a secret ballot, or permitting polling places only in favored jurisdictions. State courts have thrown out voter ID requirements they found unconstitutionally onerous, but they wouldn’t be able to if ISL becomes a guiding doctrine.
Some state constitutions provide a prohibition on partisan gerrymanders. Those provisions could become irrelevant after this case is decided. Some state constitutions also provide more expansive voting rights protections than federal law. The Supreme Court is set this fall to hear an Alabama case that will likely lead to further evisceration of the federal Voting Rights Act. If state constitutions become irrelevant, legislatures would see a greenlight in terms of discrimination.
The independent state legislature theory not only cuts against the American system of checks and balances, but would deliver a blow to federalism, potentially taking state courts out of the equation when it comes to election law, leaving federal courts the only arbiter.
“The independent state legislature theory is a lawless power grab by the federal courts masquerading as deference to a romanticized vision of the state legislature that fails to take state institutional design choices seriously on their own terms,” write Leah Litman and Katherine Shaw in a forthcoming law review article. “The dangerousness and lawlessness of the independent state legislature theory are difficult to overstate.”
