The independent state legislature theory has been rejected by the Supreme Court

The Independence of the U.S. Supreme Court as a Test of the Establishment of the 2024 General Relativity: The Case of Moore v. Harper

The U.S. Supreme Court ruled 6-3 that state constitutions can protect voting rights in federal elections and state courts can enforce those provisions, in a key opinion that should safeguard the integrity of the 2024 election.

The ruling that supported the Republican North Carolina state lawmakers could have had an impact on the way states conduct their elections for all levels of government.

The Pennsylvania G.O.P. argued for a version of the “independent state legislature doctrine,” a theory that the Constitution grants state legislatures — and state legislatures alone — broad, independent powers to regulate elections for president and for Congress. The basis for this argument is found in both Article I and Article II of the Constitution. The manner of holding elections for senators and representatives can be prescribed by the legislature in each state. And Article II’s Electors Clause says, “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.”

Opposing the independent state legislature theory in the Supreme Court were not only Democratic partisans, but a vast array of election law experts, important scholars on the left and right, judges appointed by both Republicans and Democrats, and the Conference of State Chief Justices, representing the chiefs in all 50 states.

As the justices considered this theory in the lawsuit known as Moore v. Harper, many legal scholars warned that the court’s endorsement of it could threaten to upend the country’s decentralized election system, which is mainly run by state and local officials.

First, a bit of background. The effort to steal the 2020 election depended on two key arguments. The first, the conspiracy theory, was that the election was fundamentally flawed; the second, the coup theory, was that the Constitution provided a remedy that would enable Donald Trump to take office.

The U.S. Supreme Court’s case against the state legislature’s redistricting map: a friend of the court says it won’t go that far

The state court struck down the map, citing the Ohio Constitution’s ban on partisan gerrymandering that the state’s legislature helped put into place. That state constitutional ban also gives the state’s Supreme Court the power to invalidate maps that violate the ban.

As part of Ohio’s drawn-out redistricting process for the 15 seats in the U.S. House of Representatives the state was allocated after the 2020 census, the Ohio Redistricting Commission — made up of politicians — ultimately adopted a map in March 2022 that Ohio’s state Supreme Court later found “unduly favors” the Republican Party while disfavoring the Democratic Party.

The first case to be heard by the Wisconsin Supreme Court may be over the state’s congressional map, according to Torchinsky. There is a chance that someone might go to a state court and ask them to do something off the rails that would get them in front of the Supreme Court.

To Jason Torchinsky — an attorney who wrote briefs on behalf of the Republican National Committee and the National Republican Redistricting Trust in support of the North Carolina Republican state lawmakers — “what it means is more cases are coming.”

The US Supreme Court has adopted a narrow version of the independent state legislature theory, which is waiting to be tested by more lawsuits, according to Torchinsky.

Amar added the majority’s opinion shows signs that the court doesn’t have a “great appetite” for supervising how state courts oversee federal elections.

The dean of the University of Illinois College of Law filed a friend-of-the-court brief opposing the theory and said that the high court doesn’t want control over things. “It’s not surprising that they would reserve some authority for themselves to step back in if state courts go awry.”

And that could invite requests for the U.S. Supreme Court to review whether a state court’s ruling in a case about congressional elections may have gone too far.

Chief Justice John Roberts wrote in the majority opinion that state courts can not overstepping their bounds of ordinary judicial review when interpreting state law.

“Constitutional checks and balances dodged a bullet,” Shapiro says about the impact of the U.S. Supreme Court’s ruling. “Democracy dodged a bullet.”

The court’s repudiation of the most extreme form of the theory, Shapiro says, also keeps in place a separation of powers at the state level that has allowed state courts to step in to ensure that the election rules set by state lawmakers follow their state’s constitution.

Instead, election workers can now move forward with more certainty that they’re carrying out their state’s election system with the same rules and processes for all levels of races.

“There would have been a possibility of different rules for state and federal elections, even under the same law,” explains Carolyn Shapiro, a professor at Chicago-Kent College of Law who has written about the theory’s origins and submitted a friend-of-the-court brief against the theory. “So there would have been enormous chaos.”

Many election watchers were relieved by a major U.S. Supreme Court ruling against the most extreme version of a once-fringe legal theory.