Supreme Court seems poised to reject robust reading of ‘independent state legislature’ theory

The Supreme Court on Wednesday struggled to find consensus about a legal theory that could strip state courts’ ability to review election laws passed by legislatures, but a critical bloc of justices seemed likely to reject the most robust version of that theory that could unleash dramatic change in how states oversee elections.

The case, Moore v. Harper, involves North Carolina’s congressional map. There, the state Supreme Court tossed the maps drawn by the GOP-controlled Legislature as an illegal partisan gerrymander, with court-drawn maps ultimately being used for the 2022 election.

Republican legislators asked the U.S. Supreme Court to toss out those court-drawn maps, advancing a once-fringe legal idea called the “independent state legislature” theory, which argues that an interpretation of a clause in the U.S. Constitution leaves little — or no — room for state court review of election laws.

The spotlight for Wednesday’s oral arguments was focused on three of the high court’s six conservative justices: Chief Justice John Roberts and Associate Justices Amy Coney Barrett and Brett Kavanaugh.

Those three justices will likely serve as the deciding factor in any decision. The court’s three liberals were extremely hostile to the theory during oral arguments, while the three other conservatives have signaled sympathy for a muscular version of the theory, both in previous writings and during arguments in front of the court on Wednesday.

That left Roberts, Barrett and Kavanaugh as the justices who would likely be the backbone of any controlling opinion out of the court. As in some other recent arguments, they appeared eager to buck perceptions that they're on a mission to advance doctrinaire legal interpretations that could upend decades or even centuries of standard practice in American elections.

Questioning from Roberts to David Thompson, who was representing the Republican legislators, showed hostility to the independent state legislature theory.

“Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants,” Roberts said, citing a 1930s Supreme Court case that found that the U.S. Constitution didn’t prohibit governors from vetoing a congressional map passed by legislatures.

Kavanaugh’s and Barrett’s questions to Thompson were less revealing than those from Roberts. But Kavanaugh seemingly suggested that the version of the independent state legislature theory advanced by the North Carolina lawmakers was going too far. He noted that North Carolina was trying to go further than then-Chief Justice William Rehnquist’s concurrence in the 2000 case Bush v. Gore, which is the origin of the theory that state courts have overstepped their role and that they could be hemmed in in some way.

Kavanaugh also raised a brief from the Conference of Chief Justices, a collection of chief jurists from the states, asking how to square their writing about the history of state courts applying state constitutions to federal elections, with the independent state legislature theory. Barrett, meanwhile, also seemed skeptical at times of the argument that Thompson was advancing, noting that state constitutions could be amended.

But later, Roberts’ questioning to Neal Katyal, who represented the groups that challenged the initial legislatively drawn maps, showed how some of the court’s swing conservative justices could still potentially rule in favor of the GOP lawmakers without embracing the most robust interpretation of the independent state legislature theory. Roberts seemed to be potentially probing for a way to constrain state courts in some way, particularly on what could be decisions based on broad constitutional provisions.

“Do you think the phrase ‘fair and free elections’ is providing standards and guidelines?” he asked Katyal, who responded affirmatively.

Roberts also expressed discomfort with the North Carolina Supreme Court’s conclusion that it could use that vaguely worded commitment to adopt a precise mathematical formula known as an “efficiency gap” to limit gerrymandering.

And both Kavanaugh and Barrett questioned Katyal on the Rehnquist concurrence — with Katyal arguing that the federal judiciary should intervene to second-guess a state court ruling on its own constitution only if the decision reached a “sky-high” standard of ignoring established legal principles.

The court’s liberal justices raked Thompson over the coals. At one point, Justice Sonia Sotomayor accused the GOP legislators of trying to “rewrite history” of early state constitutions in an effort to support their point. She also said bluntly to Thompson that one of his arguments “makes no sense to me.”

Justice Elena Kagan emphasized that the impacts of freeing state legislatures from restrictions placed on them under state constitutions would be sweeping. “This is a theory with big consequences,” she said.

Justice Ketanji Brown Jackson argued that the U.S. Constitution’s reference to the elections being administered by state legislatures made sense only in light of decisions those states made to set up legislative bodies and delineate their authority, typically in a state constitution.

“What I don't understand is how you can cut the state constitution out of the equation when it is giving the state legislature the authority to exercise legislative power,” Jackson said.

Meanwhile, the court’s more conservative triumvirate — Justices Samuel Alito, Neil Gorsuch and Clarence Thomas — all broadly seemed more likely to endorse a more robust reading of the independent state legislature theory. But even among those conservatives there was some ambivalence to the arguments put forward by the Republican legislators, who advocated for a reading of the theory that would remove nearly all of state courts’ jurisdiction over congressional elections. Beyond that, Thompson faced the broader challenge of winning over two of the three other conservatives, who did not seem to accept the broader interpretation.

“There’s been a lot of talk about the impact of this decision on democracy. Do you think it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign?” Alito asked at one point.

Wednesday’s oral arguments will have ramifications far beyond just North Carolina’s congressional lines, which have been redrawn several times over the course of the last decade.

A robust adoption of the independent state legislature theory by the court could grant state legislatures significantly more power in setting the rules of the road for elections. A maximalist version of the theory would prevent state courts from weighing in on disputes over everything from voter ID to last-minute polling place adjustments, and could even imperil voter-passed referendums creating independent redistricting commissions that take over traditional legislative powers. Some would even go so far as to use the federal Constitution to deny state governors their usual role. Getting the Supreme Court to sideline governors would require overruling the 90-year-old high court precedent Roberts cited, which may be why Thompson stopped short on Wednesday of advocating for such an outcome.

Significant questions remain about how, if at all, Wednesday’s case could affect the rules surrounding the selection of presidential electors. Some of the most strident proponents of the theory have raised connections to presidential elections in briefs, but many legal experts — including those who oppose the independent state legislature theory — do not believe this case will have many ramifications on presidential elections.

Presidential electors were not raised explicitly during oral arguments on Wednesday, although Kagan briefly referenced the notion that the theory reinforced the idea that legislatures unhappy with the outcome of an election could step in and declare the result — something then-President Donald Trump’s backers were urging state legislatures to do in 2020 as Trump used unsupported allegations of fraud to try to wrestle victory from Joe Biden.

“It might allow the legislatures to insert themselves, to give themselves a role in the certification of elections and the way election results are calculated,” Kagan warned.

Representing the Biden administration, Solicitor General Elizabeth Prelogar also urged the justices to allow continued enforcement of state constitutional provisions. She echoed Kagan about the dangers of overturning long-standing policies.

“That would sow chaos on the ground,” Prelogar said.

The Moore case is the second significant election law case the Supreme Court heard this term. In early October, the Supreme Court heard arguments in another redistricting case, in which Alabama argued for a “race neutral” reading of the federal Voting Rights Act, the landmark civil rights law that has led to more minority representation in politics. The court seemed unlikely to adopt that interpretation, but seemed likely to rework the legal test used to determine if minority communities’ voting power is being diluted, likely making it harder to bring challenges. Decisions in both cases are likely by the end of June.