Supreme Court denies state legislatures the unchecked power to set election rules

The Supreme Court on Tuesday rebuffed a legal theory that argued that state legislatures have the authority to set election rules with little oversight from state courts, a major decision that turns away a conservative push to empower state legislatures.

By a 6-3 vote, the court rejected the “independent state legislature” theory in a case about North Carolina’s congressional map. The once-fringe legal theory broadly argued that state courts have little — or no — authority to question state legislatures on election laws for federal contests.

The court’s decision in Moore v. Harper closes the path to what could have been a radical overhaul of America’s election laws.

A particularly robust reading of the theory — which the court turned aside— would have empowered state legislatures to make decisions on all aspects of elections, from congressional lines to how people register to vote and cast a ballot, without any opportunity for challengers to contest those decisions in state courts under state laws or constitutions. Opponents of the theory argued that it could have led to unchecked partisan gerrymandering, and laws that would make it harder for people to vote.

Chief Justice John Roberts wrote the court’s opinion, joined by the three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, along with two conservatives, Brett Kavanaugh and Amy Coney Barrett. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

In doing so, the nation’s top court maintained the power of state courts to review election laws under state constitutions, while urging federal courts to “not abandon their own duty to exercise judicial review.”

Conservative legal activists backed by some GOP operatives had urged the high court to effectively broaden the power of state legislatures — often under Republican control in recent years — to control all aspects of elections.

But the Supreme Court concluded that the U.S. Constitution allows state courts to continue to interpret state constitutions to put limits on lawmakers’ powers.

“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote.

Roberts’ majority opinion does not give state courts free rein to impose any sort of limits on legislatures’ action. The chief justice offered a warning of sorts to state judges not to run wild, but the decision issued Tuesday left open the question of when such a state court ruling would go too far.

“The questions presented in this area are complex and context specific,” Roberts wrote. “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.”

Despite that caveat, the opinion represents a major defeat for proponents of the independent state legislature theory — in part, because Roberts won a six-justice majority for his opinion and effectively sidelined three of the court’s most conservative justices on the issue.

The court’s decision to issue a definitive opinion came as a surprise to some court watchers. The roots of the case were GOP legislators challenging a decision issued by the North Carolina state Supreme Court, which ruled that legislatively drawn lines amounted to an illegal partisan gerrymander. Ultimately, a court-drawn map was used for the 2020 elections.

The U.S. Supreme Court heard arguments in the federal lawsuit in December. But following those arguments, the state Supreme Court announced it would be rehearing its own recently issued decision, which came after the state court flipped from 4-3 Democratic jurists to 5-2 Republican judges in the November elections. The state court ultimately vacated its own previous decision, saying it would not adjudicate partisan gerrymandering. (The U.S. Supreme Court ruled in 2019 that federal courts cannot police partisan gerrymandering.)

The move by the state court — an incredibly unusual one — to rehear and ultimately scrap its own ruling could have ripped the basis of the federal Moore case out, even as some parties in the case urged the Supreme Court to nevertheless issue a decision.

At least four justices on the U.S. Supreme Court — the three who dissented Tuesday and Kavanaugh, who joined Roberts’ majority — have in the past at least entertained some form of the independent state legislature theory in their writings. But during oral arguments, a majority of the court seemed unwilling to adopt a strong version of the theory.

All sides appeared to agree that regardless of the outcome in the case state election law, changes would remain subject to challenge under federal law.