Supreme Court Rejects ‘Independent State Legislature’ Theory, Finds State Courts Can Rule on Federal Elections

The Supreme Court ruled Tuesday that state legislatures do not have sole discretion in setting the rules for congressional elections, dismissing the plaintiffs’s argument that questions surrounding partisan gerrymandering are outside the reach of North Carolina courts.

“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” wrote Chief Justice John Roberts for the 6-3 majority. He was joined in the opinion by Justices Elena Kagan, Sonia Sotomayor, Ketanji Brown Jackson, Brett Kavanaugh, and Amy Coney Barrett. However, Roberts clarified 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.”

In a concurring opinion, Kavanaugh agreed with Roberts that state courts do not have free rein, but added that the general principle for federal review articulated by the Court should be distilled into a more specific standard in the future. Kavanaugh suggested chief justice William Rehnquist’s standard in Bush v. Gore: whether the state court “impermissibly distorted” state law “beyond what a fair reading required.”

The case — Moore v. Harper — centered on the “independent state legislature” theory, which holds that state legislators have the power under the U.S. Constitution to regulate federal elections with little to no interference from state courts. The theory is based on the Elections Clause of the Constitution, which says that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” It is also based on the Electors Clause of the Constitution.

In this case, the state of North Carolina was sued over a congressional map drawn in 2021 by the legislature, which likely would have given Republicans ten of the state’s 14 congressional seats. The challengers asserted the map was an extreme partisan gerrymander and claimed it violated the state’s constitution. In February of last year, the North Carolina Supreme Court agreed with the challengers by a vote of 4-3, striking down the map for last year’s midterm elections and adopting a new map drawn by three court-appointed experts.

Republican legislators led by Speaker Timothy Moore of the North Carolina house appealed to the Supreme Court, which declined to intervene in the case before the 2022 midterms, with Republicans and Democrats winning seven seats each. However, the high court decided in June it would hear oral arguments in the case.

Moore argued that the text of the Constitution only mentions the state legislatures for a reason, explaining the drafters could have included a role for other entities if they wanted. On the other hand, Rebecca Harper and others who challenged North Carolina’s congressional map in state court argued that the legislature’s theory was “extreme” and that lawmakers should not be “immune from judicial review.”

In late April, the North Carolina Supreme Court justices overruled their 2022 decision — Harper v. Hall — that struck down the original map. Two new justices had joined the court, flipping the balance of power to a majority of Republican-appointed justices. “There is no judicially manageable standard by which to adjudicate partisan gerrymandering claims. Courts are not intended to meddle in policy matters,” wrote Chief Justice Paul Newby for the five-justice majority. “In its decision today, the Court returns to its tradition of honoring the constitutional roles assigned to each branch.” At that point, the U.S. Supreme Court sought clarification from the parties in Moore v. Harper as to whether the case was moot, but received conflicting answers.

Despite the high court in Raleigh overruling itself, Roberts found that the Supreme Court still had jurisdiction to rule in favor of the North Carolina justices in the February majority. The practical effect for North Carolina is minimal as the court in Raleigh has already provided for a new congressional map. However, state legislatures throughout the country have reduced ability to appeal to the theory in the 2024 elections and beyond.

Justice Clarence Thomas dissented from the majority and was joined by Justices Samuel Alito and Neil Gorsuch. Thomas would have dismissed the case as moot given the April decision of the North Carolina Supreme Court.

“This is a straightforward case of mootness. The federal defense no longer makes any difference to this case— whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same,” wrote Thomas. The justice added that the majority creates uncertainty with the decision, opening the possibility of “Bush-style controversies over state election law.”

Moore v. Harper followed another major elections case this month — namely, Allen v. Milligan. In that case, Roberts and Kavanaugh joined the Court’s liberals to strike down Alabama’s congressional map on the grounds that it wasn’t race-conscious enough. On Monday, in line with that decision, the Supreme Court lifted its stay of a federal court ruling that Louisiana’s congressional lines likely violated the Voting Rights Act. Further litigation will follow.