After three hours of oral arguments at the Supreme Court on Wednesday, only one thing is certain: If the justices want to blow up federal elections, they will have nothing to hide behind—not history, not logic, and certainly not the Constitution. The three lawyers defending democracy methodically dismantled the “independent state legislature” theory from every conceivable angle, debunking each myth, misreading, and misrepresentation deployed to prop it up. They bested the conservative justices who tried to corner them, identifying faulty reasoning and bogus history with devastating precision.
Those of us who’ve been ringing the alarm over this dangerous theory—and who’ve been disgusted by the campaign to drag it from the far-right fringe all the way to the Supreme Court—can take solace knowing that these capable lawyers exposed it as an utter fraud. This idea was at the center of Donald Trump’s efforts to overturn the 2020 election, so it was a relief to hear five justices sound deeply skeptical that it has any basis in the Constitution. It is far too early to celebrate the demise of the independent state legislature theory, since four justices have already endorsed it. But the skepticism it faced at arguments suggests that democracy has a fighting chance of survival.
If Wednesday’s case, Moore v. Harper, is new to you, prepare to be startled by how ridiculous it is. The petitioners are Republican leaders of the North Carolina Legislature. They are angry that the North Carolina Supreme Court struck down the congressional map that they drew after the 2020 census—which was, objectively, an extreme partisan gerrymander. The court found that the map violated various provisions of the North Carolina Constitution, including a guarantee that “all elections shall be free.” There was nothing unusual about this decision: It is a bedrock principle of federalism that state courts have final authority over the meaning of state constitutions. Other courts, including the Supreme Courts of Florida and Pennsylvania, issued similar decisions invalidating congressional districts, and SCOTUS did not get involved.
But North Carolina Republicans decided to use this case to achieve a broader GOP ambition: the revival of a long-discredited doctrine known as the independent state legislature theory, or ISLT. This theory rests on the Constitution’s elections clause, which says the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.” It posits that this clause frees the state legislature from restraints imposed by the state constitution when regulating federal elections. Specifically, it would prevent state courts from enforcing those restraints when the legislature passes a law that violates them. The usual checks and balances of state lawmaking do not apply, the ISLT claims, because the U.S. Constitution gives power over the “manner” of these elections to the state legislature exclusively.
That’s the argument that the Supreme Court considered, and rejected, in Bush v. Gore. (A young Bush lawyer named Brett Kavanaugh was especially enamored of it.) It’s the argument that Trump deployed when he tried to nullify millions of votes in 2020. And it’s the argument that Ginni Thomas, wife of Justice Clarence Thomas, relied upon when lobbying state legislators to appoint “alternate electors” who would support Trump. And to be fair, it has some superficial appeal: Its proponents like to say that “legislature means legislature,” and that’s the end of it.
But it’s really not, for at least four reasons. First, when the Constitution was written, in 1787, legislature meant more than the specific body of elected representatives who pass laws. The word encompasses the entire power that makes laws—which is why, for instance, a governor can veto a congressional map. Second, even if legislature meant a specific political body, there’s no indication that the Framers intended to cut out the rest of state government, letting representatives flout all the usual rules of lawmaking. State legislatures have always been understood as creatures of their state constitutions, with no special power to bypass the charter that created them. Third, since the start of the republic, state courts have imposed limits on election laws passed by the legislature—a tradition that casts doubt on the hypothesis that the elections clause contains some secret, sweeping limit on their authority. Fourth, even if these three propositions are dead wrong, there’s still no clear, consistent standards that federal courts could use to determine when state courts misinterpret state election law. If the Supreme Court did adopt the ISLT, it would be flooded with disputes over election procedures, with no principled test to decide each case.
The justices pressed these issues through arguments on Wednesday. But before turning to them, it’s worth reiterating the cross-ideological consensus that the ISLT is bunk. A number of conservative legal luminaries filed briefs in Moore v. Harper opposing it, including Thomas Griffith, a former judge appointed by George W. Bush; J. Michael Luttig, a former judge appointed by George H.W. Bush; Steven Calabresi, a co-founder of the Federalist Society; Ben Ginsberg, a renowned GOP election lawyer; and Charles Fried, Ronald Reagan’s solicitor general. In an unprecedented move, the chief justices of all 50 states’ Supreme Courts urged SCOTUS not to adopt the theory for fear of confusion and mayhem at every level of the judiciary.
This outpouring of opposition can be attributed, in part, to Trump’s effort to use the ISLT in service of a coup. Reasonable Republicans recognize a reality described by Neal Katyal, who argued that “the blast radius” from ISLT “would sow elections chaos,” “invalidating 50 different state constitutions” and countless statutes empowering state courts to regulate elections. Katyal was in top form on Wednesday, playing both advocate and historian. The ISLT, he explained, is refuted by 233 years of history, “rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice,” and repudiated by the Supreme Court’s precedents. To accept the theory, he told the justices, “you’d have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today.”
Katyal faced intense pushback from Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito, three fanatical believers in the ISLT, but he did not yield. He corrected Gorsuch’s bad history when the justice accused him of defending Virginia’s three-fifths clause. (“It’s a nice smear,” Katyal quipped.) He pushed back hard against Alito’s efforts to malign the North Carolina Supreme Court as an out-of-control partisan usurper, explaining that it sought to impose only “ordinary checks and balances.” And he soothed Justice Brett Kavanaugh by assuring him that there could be some “federal judicial review” here, just under a “sky-high standard” of deference to state courts.
Don Verrilli, also opposing the ISLT, did a commendable job conveying the ahistorical nature of the doctrine. He explained that the Founders’ fear of state legislatures’ manipulating elections could be traced back to the English bill of rights, “which was about the manipulation of electoral processes so that the Parliament would be in the king’s pocket, essentially.” This originalist argument infuriated Alito, who asked sarcastically if “anybody ever thought that the English bill of rights had anything to do with” partisan gerrymandering. (Not how originalism works!) Alito continued to slander the North Carolina Supreme Court by mischaracterizing its precedents, but Verrilli deftly corrected his mistakes. You could actually hear Alito rhythmically thumping the bench, which he tends to do when he tries and fails to pin down counsel.
Solicitor General Elizabeth Prelogar then tied up loose ends, mostly reassuring Chief Justice John Roberts that SCOTUS could reject the ISLT without relinquishing all power over state election disputes. By the time Prelogar approached the podium, the arguments were pointing toward a rough consensus: In rare, extreme cases, a state Supreme Court might misinterpret an election law so egregiously, so indefensibly, that SCOTUS could intervene. In most situations, though, state courts still get final say over the manner of federal elections.
The real debate is exactly how much deference SCOTUS should give to state courts: Should the deference be “sky high”? “Incredibly high”? Limited to cases when state courts jettison “reasonable interpretive principles” or “impermissibly distort, beyond any fair reading, the state law”? The answer matters a great deal, because it will mean the difference between maintaining a judicial check on state legislatures and handing legislators the power to rig elections.
In the end, Moore v. Harper probably comes down to Justice Amy Coney Barrett. Thomas, Alito, Gorsuch, and Kavanaugh have all endorsed the ISLT in the past. Roberts, along with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, clearly has no desire to revive it. So Moore is in Barrett’s hands, and it serves as the ultimate test of her self-proclaimed originalism.
So it was noteworthy that Barrett sounded audibly skeptical throughout Wednesday’s arguments. She was pretty tough on David Thompson, who represented North Carolina’s GOP legislative leaders, suggesting that his “formalistic test” was an unworkable stab at “trying to deal with our precedent,” which cut against him. Thompson tried to draw a line between “substantive and procedural,” but Barrett wasn’t buying it: “As a former civil procedure teacher, I can tell you that is a hard line to draw and a hard line to teach students in that context as well.” She also pointedly noted that Thompson’s standards for implementing the ISLT were not “more manageable” than the North Carolina Supreme Court’s standards for measuring gerrymanders. It was a polite way of calling Thompson a hypocrite.
Barrett’s questions for Katyal, Verrilli, and Prelogar were much more sympathetic. The justice essentially asked Katyal how the court should write a decision rejecting the ISLT. And she strongly implied to Verrilli that SCOTUS did not even have jurisdiction to hear the case. Overall, Barrett sounded eager to end Moore v. Harper with a whimper.
Which is what any honest originalist would be obligated to do. Scholars of American legal history, particularly in the founding era, have lined up in this case to explain why the ISLT is totally foreign to the laws and traditions of this nation. They have presented overwhelming evidence to support their position, evidence that is not remotely countered by the other side. There are so many political factors in this case. It is haunted by the ghosts of Bush v. Gore and Trump’s coup—both confirmation that the ISLT can be manipulated for scurrilous ends. But the promise of originalism is that it lets judges cut through these extralegal considerations and cling to the original public meaning of the Constitution. Moore v. Harper is one of the rare cases in which that meaning is crystal clear. If Barrett doesn’t let politics interfere, she can turn this awful case into originalism’s shining moment.