Democracy dodges a bullet
After the 2020 presidential election, lawyers representing Trump were unable to produce evidence of significant fraud to reverse Biden's victory. So they began to promote another path to keep Trump in the White House: the independent state legislature theory. John Eastman and other lawyers aligned with Trump argued that state legislatures could simply ignore the election results and appoint electors pledged to Trump.
The independent state legislature theory is based on a hyper-literal interpretation of the Elections Clause of the Constitution:
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.
Advocates of the independent state legislature theory argue that this means that, apart from Congress, the state legislature has absolute power over the administration of elections. This power, according to the theory, cannot be constrained by state constitutions or state courts.
Sure, the Supreme Court had rejected this theory for 100 years. But this was a new Supreme Court packed with judges nominated by Trump. It was time to think big.
Fortunately, despite pressure from Trump's political operation, no state legislature was willing to throw out its results and directly appoint electors pledged to Trump. But powerful Republicans continued to explore how the independent state legislature theory could be used to enhance their political power.
Following the 2020 Census, Republicans in the North Carolina legislature created gerrymandered Congressional districts that were so extreme that an evenly divided popular vote would result in "10 of the 14 seats to the Republicans and only four to the Democrats." The map created by the Republican legislature "was a radical statistical outlier more favorable to Republicans than 99.9999% of all possible maps." The North Carolina Supreme Court found that the maps violated the state constitution's free election clause and ordered them to be redrawn. When Republicans produced another set of gerrymandered maps, a North Carolina court ordered "a special master to create a fair map for the 2022 congressional elections."
Two Republican members of the North Carolina legislature challenged the ruling, arguing that the North Carolina Supreme Court's actions were unconstitutional under the independent state legislature theory. Last June, the Supreme Court agreed to consider the case, known as Moore v. Harper. It was an ominous sign.
On Tuesday, however, the Supreme Court rejected the independent state legislature theory in a 6-3 decision. Chief Justice John Roberts, writing for the majority, ruled, "the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review." Roberts noted that each time the Supreme Court had considered the independent state legislature theory, it "rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections." Further, the independent state legislature theory does not account for the fact "that when legislatures make laws, they are bound by the provisions of the very documents that give them life." In other words, state legislatures "are the mere creatures of the State Constitutions, and cannot be greater than their creators."
The impact of the ruling could be seen quickly. In Wisconsin, "a new liberal majority on the state Supreme Court could strike down the state’s gerrymandered congressional map under the Wisconsin Constitution once a new justice is seated in August." In all, there are 28 election law cases in 19 states that will now be able to proceed. These cases "challenge either congressional maps or state voting laws under their state laws or state constitutions."
Of course, just because state courts can apply state constitutions to reign in the excesses of state legislatures doesn't mean they will. Following the 2022 election, the composition of the North Carolina Supreme Court changed, and the new 5-2 conservative majority agreed to rehear the redistricting case. In May, the North Carolina Supreme Court reversed its prior decision, ruling that the state constitution does not restrict partisan gerrymandering. The decision cleared the way "for the legislature’s GOP majority to draw districts that help lock in power at the statehouse and contribute to Republican power in Congress."
The Moore ruling, however, comes with a potentially significant caveat. Here is a key section of Roberts' decision:
We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.
What does Roberts mean by that? Election law expert Rick Hansen notes that the passage comes after a lengthy discussion of Bush v. Gore, the Supreme Court case that decided the 2000 presidential election. (This is, according to Hansen, the first time the case has been cited in a majority opinion in 23 years.) Bush v. Gore considered the Florida Supreme Court's ruling to recount certain ballots to determine the true winner. In a concurrence, three justices "argued that the Florida court’s interpretation of the Florida election statutes to allow this recount was so far from ordinary statutory interpretation that the Florida court was essentially making up the law for itself, and taking away the legislature’s power to decide the rules for conducting federal elections in the first instance."
In Moore, Roberts takes the argument from the concurrence in Bush v. Gore and turns it into precedent. Hansen describes it as a "milder" form of the "independent state legislature theory." Although Robert does not explain the standard in detail, it could "give great power to federal courts, especially to the U.S. Supreme Court, to second-guess state court rulings in the most sensitive of cases." What constitutes "the ordinary bounds of judicial review" is left undefined, opening the door for federal intervention in a range of election-related cases.
It's unlikely that the three liberal justices who signed onto Roberts' majority opinion — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — wished to endorse a controversial aspect of Bush v. Gore. But it was the price for avoiding a more extreme outcome.