The Supreme Court on Thursday agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights in federal elections. It also could provide the path for election subversion in congressional and presidential elections.
The issue presented in this case has been a recurring one in recent years. Two parts of the Constitution—Article I, Section 4 as to congressional elections and Article II as to presidential elections—give state “legislatures” the power to set certain rules (in the Article I, Section 4 context, subject to congressional override). In cases such as Smiley v. Holm, the Supreme Court has long understood the use of the term legislature here to broadly encompass a state’s legislative process, such as the need for a governor’s signature on legislative action (or veto override) about congressional elections. As recently as 2015, in Arizona Independent Redistricting Commission v. Arizona Legislature, the Supreme Court held that the voters in Arizona could use the initiative process to create an independent redistricting commission to draw congressional districts even when the state legislature objected. The majority saw voters passing legislation via initiative as part of that legislative process.
But that latter case was 5–4 with a strong dissent by Chief Justice John Roberts, who believed the legislature could not be cut out of the process. Most of the justices in the majority in that case are now off the court.
There’s a more radical version of the idea that the legislature has power, standing on its own as a body and not part of the general structure of state government, in the independent state legislature theory.
Take the facts of the Moore case. The North Carolina Supreme Court, interpreting a provision of the state constitution protecting the right to vote, held that partisan gerrymandering violated the state constitution and required drawing fairer lines, including in congressional districts. That state court is majority Democrat, and the North Carolina General Assembly is majority Republican. The Republican legislature argued that this holding usurped its sole and plenary power to choose the manner for drawing congressional districts.
Pause on that for a moment: The theory in this extreme form is that the state constitution as interpreted by the state supreme court is not a limit on legislative power. This position would essentially neuter the development of any laws protecting voters more broadly than the federal Constitution based on voting rights provisions in state constitutions. It also goes against what Roberts wrote for the conservative majority of the court as recently as in the 2019 redistricting case Rucho v. Common Cause, when he explicitly said that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” regarding redistricting. As Roberts wrote, the courts have a role to play in redistricting fights:
Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution.
A state supreme court—albeit a Democratic-controlled one—making a judgment about what a state constitution allows in terms of redistricting is also what happened in North Carolina. Of course, the composition of the Supreme Court has changed in the intervening years since Rucho.
What’s worse, this theory might not just restrain state supreme courts; it can also potentially restrain state and local agencies and governors implementing rules for running elections.
And this kind of argument shows how the ISL theory, if taken to its extreme, could help foment election subversion. How so? Suppose a state court or agency interprets state rules to allow for the counting of certain ballots, and doing so favors one candidate. If the leaders of the legislature are from the other party, and they say that the interpretation does not follow the views of the legislature, it’s impermissible and the results need to flip. (This is essentially the argument that Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas accepted in their concurrence in the 2000 Bush v. Gore case, ending the 2000 presidential election and handing it to Bush.)
Now there may be many responses to such arguments, including arguments like laches—you can’t start raising these arguments after an election when things don’t go your way.
This was in fact the theory that Trump allies tried to raise after the Pennsylvania Supreme Court extended the time to receive absentee ballots in the 2020 elections because of the COVID pandemic, relying on voter-protective provisions in the state constitution. Trump allies argued this usurped the power of the state legislature to set deadlines, and Justice Samuel Alito at the time put the counting of such ballots on hold. There were ultimately only about 10,000 such ballots, far fewer than the 80,000-vote margin of victory of Biden in the state. But if it had been closer, a radical reading of ISL could have led to a flipping of results.
Now there may be more limited ways of reading the ISL theory, such as to apply only when a state court or agency decision very strongly deviates from legislative language about how to run federal elections.
There are also good reasons for the North Carolina legislature to lose even under a strong version of the ISL theory, as I explained earlier in Slate:
An even stronger reason for believing that the North Carolina argument is weak in this case is that it was the state legislature itself that proposed the provision in the 1970 constitution guaranteeing these voting rights for North Carolina voters, which have now been interpreted by the state supreme court to ban partisan gerrymandering. As North Carolina elections guru Gerry Cohen explained, “Unlike the North Carolina Constitutions of 1776 and 1868 which were promulgated by independent conventions, the 1970 state constitution was enacted by the General Assembly.” How can the state supreme court have usurped the legislature’s power when the legislature itself brought this provision into the state constitution, knowing full well that the state constitution is interpreted by the state Supreme Court?
There are also strong originalist arguments that might persuade some of the justices not to adopt such a radical reading of these constitutional provisions.
But buckle up! An extreme decision here could fundamentally alter the balance of power in setting election rules in the states and provide a path for great threats to elections.
A version of this post originally appeared on Election Law Blog.