Andy Craig, Director of Election Policy

As originally published in The Daily Beast June 27, 2023

Surprise! The conservative leaning Court squashed "independent state legislature theory," saying state courts have the authority to rule on election shenanigans. 

The case was “a plot to steal the 2024 election,” according to former Clinton administration Labor Secretary Robert Reich. The Center for American Progress warned that the Supreme Court might adopt an “extreme MAGA election theory that threatens democracy.” Democratic election litigator Marc Elias chastised fellow progressives for pursuing the matter, insisting that “given the composition of the Supreme Court, no one who cares about free and fair elections should be rushing to get the Supreme Court to potentially create any doctrine where none exists.”

And yet, on Tuesday, the much-dreaded ruling in Moore v. Harper came down… and the result is not the democratic doomsday many had feared.

By a vote of six to three, the Court categorically rejected the so-called independent state legislature (ISL) theory, the argument at the center of these dire predictions. America’s experiment in self-government lives another day.

It Depends on What the Meaning of “Legislature” Is

Harper concerns one of the most widely loathed aspects of our political system: partisan gerrymandering.

In a 2019 case with a majority opinion also written by Chief Justice John Roberts, Rucho v. Common Cause, the Court had declared partisan (as opposed to racial) gerrymandering to be a nonjusticiable political question for federal courts. But in North Carolina, the state supreme court disagreed. Ruling under the state constitution, which they have the final say on, that court held that the legislature’s congressional redistricting map was so egregiously tilted in favor of the GOP that it violated the guarantee of “free and equal” elections.

The legislature then turned to a controversial legal theory which had been gaining steam in recent years among some conservative academics. The Constitution says that rules for congressional elections, subject to possible congressional override, shall be set in each state by the state’s “Legislature.”

This, according to proponents of ISL theory, meant that state legislators were immune from being overridden by state constitutions and courts. It’s an admittedly plausible reading of the clause’s plain text.

If the federal Constitution gives this power to the legislature, state law cannot divest them of that power, or so the argument went. Legislatures were independent of any other state-level constraints, including judicial review.

ISL theory gained its most notoriety when it was advanced by Trump supporters in their bid to overturn the 2020 election. Drawing from a similar clause governing how members of the Electoral College are chosen, they urged state legislatures to convene during the post-election period to strip Biden’s electors of their position and select Trump electors instead.

This argument was specious for reasons unrelated to ISL theory, however. And it never really reflected the serious pro-ISL arguments raised by conservative legal scholars. In its brief in Harper, the Republican National Committee even explicitly disavowed the idea that ISL means state legislatures can overturn presidential elections.

The practical consequences at stake in Harper therefore revolved much more around gerrymandering and other possible election laws such as voter ID and postal voting.

They’re Not Buying It

With all that mind, jitters about the pending case were understandable.

But then something unexpected happened: three conservative justices (Roberts, Barrett, and Kavanaugh) joined with the Court’s three progressives to completely reject the entire argument, root and branch.

It turns out, the Supreme Court is fond of the idea that courts should be able to strike down laws. And it’s not the first time this term Republicans have been dealt an unexpected defeat on a redistricting case.

First, Roberts had to get past a procedural issue. Since its original ruling in Harper, the partisan balance of the North Carolina Supreme Court had flipped. The newly Republican majority promptly overturned the previous ruling, apparently making the pending federal case moot.

Roberts, however, found otherwise on something of a technicality. The North Carolina justices did not reinstate the map originally challenged. Instead, they directed the legislature to adopt a new one consistent with their new ruling. But if the Supreme Court had ruled in favor of the legislature, the state would instead revert to the legislature’s first adopted map. This, Roberts reasoned, meant the case wasn’t moot at all.

Proceeding to the merits, the majority opinion comprehensively trashes ISL from top to bottom. This ruling does not, as some expected, adopt a watered-down toothless version of ISL as a form of compromise (and to dodge the can of worms that would be opened by endorsing its stronger iterations). Instead, the Court has definitively rejected the whole premise that the Elections Clause places state legislatures outside of state constitutional constraints.

As Roberts outlines, the arguments for ISL had already been repudiated by previous precedents.

In a 1916 case, the Court rejected a challenge to the use of a popular referendum to reject the congressional map adopted by the legislature. In 1931, the Court rejected an argument that the Elections Clause cut gubernatorial vetoes out of the process. And in 2015, the Court rejected a challenge to Arizona’s adoption of an independent redistricting commission (over a dissent by Roberts). The basic premise, if not yet known by the name “independent state legislature theory,” had thus reached the Court several times before and already been rejected repeatedly.

Independent state legislature theory also stood on weak ground as a matter of history and original intent.

There is no real indication that the authors and ratifiers of the Constitution understood the Elections Clause this way, and it conflicts with much of what they did say. Indeed, shortly thereafter, state constitutions began adopting provisions imposing restraints on what their legislatures could do as to federal elections. The role of nascent state courts striking down state laws was favorably cited at the Constitutional Convention as a model for the federal judiciary to emulate. Disempowering state courts by federal mandate, especially by vague implication rather than an explicit rule, would have been very incongruent.

With both history and precedent stacked against ISL, the conservative-dominated Court was unpersuaded and ruled against Republicans advancing the argument. Instead, ISL is now effectively dead for the purposes of any future litigation.

Don’t Say Goodbye to Gerrymandering Yet

Far from unleashing a flood of partisan gerrymandering and voter suppression, the ruling in Harper gives a firm stamp of approval to state-level efforts to rein such practices in.

State courts can apply their state-level equivalents of equal protection and free speech to strike down unacceptable acts of the state legislature. Voters remain free, as they have already done in many states, to adopt constitutional amendments requiring fair districts or giving the role to independent commissions.

Beneath this, however, the fundamental problem of gerrymandering is intractable for reasons far removed from constitutional interpretation. As political scientists have long observed, the system of single-member districts effectively requires gerrymandering of one sort or another. This might be to maximize partisan advantage or to disadvantage minorities (two things that are hard to distinguish in practice).

But drawing district lines to achieve partisan proportionality is, itself, arbitrary and involves awarding a certain number of safe red and blue seats. No matter what, the map dictates the results more than the voters. And many voters will be arbitrarily packed and cracked into districts where their votes effectively do not matter and get no elected representation.

Ultimately, the only solution to this problem is to create multi-member districts using proportional representation. With larger districts (in many cases statewide), gerrymandering becomes much less feasible. With the use of proportional representation, partisan and racial minorities secure representation even in districts where they are outnumbered.

While blatantly unfair maps remain subject to some important constraints after Harper, the fundamental problem with America’s way of electing its legislators means vicious fights over how to divvy up voters will persist.

Andy Craig is director of election policy at the Rainey Center and an adjunct scholar at the Cato Institute.