For the second time this month, the Supreme Court has preserved the legal status quo on election law — causing liberals to breathe a huge sigh of relief.
In a 6-3 decision on Tuesday, the court ruled that the North Carolina Supreme Court was within its rights to strike down the state’s congressional map in 2022 as a partisan gerrymander under the state constitution. Practically speaking for North Carolinians, the ruling doesn’t actually mean much: Republicans took control of the state Supreme Court after the 2022 elections and have already reversed the court’s 2022 decision. The North Carolina legislature is expected to draw a new gerrymander this summer. But the case has wider, more meaningful consequences for the rest of the country.
The case, called Moore v. Harper, rested on a fringe legal theory called the “independent state legislature theory.” Essentially, Republicans were pushing an extremely literal reading of the elections clause of the U.S. Constitution, which says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” They argued that this means federal election law can be set only by each state’s legislature — other entities, like state courts, can’t have a say.
The Supreme Court thoroughly rejected the most extreme interpretation of the theory, which argued that state courts have no power over how federal elections are run. But state legislatures, according to Chief Justice John Roberts’ majority opinion, are bound by state constitutions when making the rules surrounding federal elections, and the elections clause doesn’t give them a pass to evade normal checks and balances. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote.
The fact that the court rejected this version of the independent state legislature theory is a big deal, since even partially accepting it would have had drastic consequences for election administration. If the court had ruled that state supreme courts can’t overturn legislatively drawn congressional maps, it would have removed one of the few checks in states where one party has total control over the redistricting process, opening the door to much more aggressive gerrymanders. And the impact may not have been limited to congressional maps: State courts might not have been allowed to strike down any laws dealing with federal elections, such as voter-ID requirements or restrictions on absentee voting. In other words, this case had the potential to take away one of Democrats’ few remaining weapons against restrictive voting laws. Instead, they get to keep it.
But the decision also ensures that some of the questions behind the independent state legislature theory remain unanswered as the 2024 election approaches. The justices underscored that state courts are also capable of going too far, potentially usurping some of the power that belongs to state legislatures. “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,” Roberts wrote.
The justices didn’t set a standard for when state courts cross this line — in fact, they didn’t even rule on whether the North Carolina Supreme Court went too far in this instance. So we don’t yet know what this will mean in practice. There will almost certainly be more legal fighting over when a state court is serving as a legitimate check on the legislature and when it’s encroaching on the legislature’s power. But the justices clearly indicated that there is a role for federal courts to intervene — which, as both Roberts and Kavanaugh noted in their opinions, is what then-Chief Justice William Rehnquist said in his concurring opinion in Bush v. Gore back in 2000, when the justices jumped in to overrule the Florida Supreme Court. That ruling effectively decided the outcome of the presidential election, by shutting down a recount that the state high court had ordered.
So while we don’t know what the specifics will look like as the next election unfolds, the U.S. Supreme Court is holding on to the power to intervene, which means it could still be deciding cases that matter a lot for contentious elections. But state courts haven’t been cut out of the loop, and we don’t know yet how aggressively the Supreme Court justices will be willing to second-guess them.
CLARIFICATION (June 29, 2023, 10:40 a.m.): This article has been clarified to say that, had the Supreme Court accepted the independent state legislature theory, state courts might have been barred from striking down laws dealing with federal elections, not federal laws dealing with elections.