Supreme Court rejects theory that would have changed US elections
Tuesday the Supreme Court rejected a legal theory that would have radically reshaped the way federal elections are conducted by giving state legislatures largely unchecked power to enact all sorts of federal election rules and draw congressional maps distorted by partisan gerrymandering.
The vote was 6 to 3 with Chief Justice John G. Roberts Jr. wrote the opinion of the majority. The Constitution, he said, “does not exempt state legislatures from the ordinary limitations imposed by state law.”
Judges Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch disagreed.
The case involved the “independent state legislature” theory. The doctrine is based on a reading of the constitution Election clausestating: “The times, places, and manner of conducting elections for Senators and Representatives shall be prescribed in each State by the legislature thereof.”
Proponents of the strongest form of the theory say this means that no other organs of state government — no courts, no governors, no election executives, no independent commissions — can change the actions of a legislature in federal elections.
The case, Moore v. Harper, No. 21-1271, involved a ballot card prepared by the North Carolina legislature that was initially rejected by the state Supreme Court as a partisan gerrymander. Experts said the map would likely produce a congressional delegation consisting of 10 Republicans and four Democrats.
The state court rejected the argument that it had no right to review the actions of state legislatures, saying that adopting the independent state legislature theory would “contrary to the sovereignty of states, the authority of state constitutions, and the independence of state courts, and would lead to absurd and dangerous consequences.”
Republicans who tried to restore the legislative map last year asked the US Supreme Court to intervene, arguing a emergency application that the state court had been powerless to act.
The judges rejected the request for immediate intervention and the November election was held on the basis of a map prepared by experts appointed by a state court. That resulted in a 14-member congressional delegation split evenly between Republicans and Democrats, roughly mirroring the state’s partisan division.
The Republican lawmakers appealed to the U.S. Supreme Court, saying the state court had no right to question the legislature. When the U.S. Supreme Court heard arguments in the case in December, the justices seemed divided, if not broken, over the boundaries of the theory.
The makeup of the North Carolina Supreme Court changed after the November election, favoring Republicans by a margin of 5 to 2. In what one dissenting judge called a “shameful manipulation of fundamental principles of our democracy and the rule of law,” the new majority reverse coursesaying that the legislature was free to draw gerrymandered voting districts as it saw fit.
Many observers had expected the US Supreme Court to dismiss the case in light of that development. But Chief Justice Roberts concluded that the Supreme Court retained its jurisdiction over the case.
The Supreme Court has never endorsed the independent state legislature theory, but four of its conservative members have issued opinions that seemed to take it very seriously.
When the court closed the doors of federal courts to partisan gerrymandering claims Rucho v. Common Cause in 2019, Chief Justice Roberts, writing for the court’s five most conservative members, said state courts could continue to hear such cases — including in the context of congressional redistribution.
“Our conclusion does not condone excessive partisan gerrymandering,” he wrote. “Nor does our conclusion condemn complaints about districts to echo in a void. For example, the states are actively working on the problem on several fronts.” He seemed to anticipate and reject the independent state legislature theory, writing that “provisions in state statutes and state constitutions may provide standards and guidelines for state courts to apply.”
In 2015, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the court ruled that Arizona voters had the right to try to make the process of drawing congressional districts less partisan by creating an independent redistricting commission despite the reference to “legislative power” in the Elections clause.
“Nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe the time, place, and manner of holding federal elections in violation of the provisions of the state constitution,” said Justice Ruth Bader Ginsburg, who died in 2020, wrote the majority opinion of the 5-to-4 decision.