Supreme Court Rejects Theory That Would Have Transformed American Elections


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The Supreme Court on Tuesday rejected a legal theory that would have radically reshaped how federal elections are conducted by giving state legislatures largely unchecked power to set rules for federal elections and to draw congressional maps warped by partisan gerrymandering.

The vote was 6 to 3, with Chief Justice John G. Roberts Jr. writing the majority opinion. The Constitution, he said, “does not exempt state legislatures from the ordinary constraints imposed by state law.”

Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.

The case concerned the “independent state legislature” theory. It is based on a reading of the Constitution’s Elections Clause, which says, “The times, places and manner of holding 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 — not courts, not governors, not election administrators, not independent commissions — can alter a legislature’s actions on federal elections.

Chief Justice Roberts rejected that position. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” he wrote.

The ruling soundly dismissed the theory, one that an unusually diverse array of lawyers, judges and scholars across the ideological spectrum viewed as extreme and dangerous.

But election law specialists cautioned that Tuesday’s decision elevated the power of federal courts in the process, allowing them to second-guess at least some rulings of state courts based on state law.

As Chief Justice Roberts put it, “state courts do not have free rein” and are subject to oversight by federal courts in cases involving federal elections. But he said quite little about the nature and extent of that oversight.

“The questions presented in this area are complex and context specific,” the chief justice 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.”

Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson joined the chief justice’s majority opinion.

The case will have no practical impact in the dispute that gave rise to it, involving North Carolina’s congressional voting map. A recent ruling by the state’s Supreme Court authorized the Republican-controlled Legislature to draw maps as it sees fit, ensuring that the resulting districts will be warped by politics.

The case, Moore v. Harper, No. 21-1271, concerned a voting map drawn by the North Carolina Legislature after the 2020 census that was initially rejected as a partisan gerrymander by the state’s Supreme Court. Experts said the map was likely to yield a congressional delegation made up of 10 Republicans and four Democrats.

The state court initially rejected the argument that it was not entitled to review the actions of the state’s Legislature, saying that adopting the independent state legislature theory would be “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”

Republicans seeking to restore the legislative map last year asked the U.S. Supreme Court to intervene, arguing in an emergency application that the state court had been powerless to act.

The justices rejected the request for immediate intervention, and the election in November was conducted under a map drawn by experts appointed by a state court. That resulted in a 14-member congressional delegation that was evenly split between Republicans and Democrats, roughly mirroring the state’s partisan divisions.

The Republican lawmakers appealed to the U.S. Supreme Court, saying the state court was not entitled to second-guess the Legislature. When the U.S. Supreme Court heard arguments in the case in December, the justices seemed divided, if not fractured, over the limits of the theory.

The composition of the North Carolina Supreme Court changed after elections in November, favoring Republicans by a 5-to-2 margin. In what a dissenting justice called a “shameful manipulation of fundamental principles of our democracy and the rule of law,” the new majority reversed course, saying the Legislature was free to draw gerrymandered voting districts as it saw fit.

Many observers had expected the U.S. Supreme Court to dismiss the case in light of that development. But Chief Justice Roberts concluded that the case involved a live controversy and that the Supreme Court retained jurisdiction over it.

In dissent, Justice Thomas, writing for three members of the court, said the case was “indisputably moot.” He added that the majority’s reasoning on the merits was unpersuasive.

“In the end,” he wrote, “I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.”

Justice Thomas said he feared the ruling would invite last-minute lawsuits over election disputes.

“They will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded ‘the bounds of ordinary judicial review’ in construing the state constitution,” he wrote. “I would hesitate long before committing the federal judiciary to this uncertain path.”

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.

In his opinion on Tuesday, Chief Justice Roberts wrote that several of the court’s precedents were at odds with a broad version of the theory. “Each rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections,” he wrote.

He added: “In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures” by the federal Constitution.

In a concurring opinion, Justice Kavanaugh underscored the point. “Federal court review of a state court’s interpretation of state law in a federal election case should be deferential,” he wrote, “but deference is not abdication.”

Richard L. Hasen, a law professor at the University of California, Los Angeles, said the ruling amounted to a compromise. “This gives the U.S. Supreme Court the ultimate say over the meaning of state law in the midst of an election dispute,” he wrote in a blog post. “This is a bad, but not awful, result.”

When the court closed the doors of federal courts to claims of partisan gerrymandering in Rucho v. Common Cause in 2019, Chief Justice Roberts, writing for the five most conservative members of the court, said state courts could continue to hear such cases — including in the context of congressional redistricting.

Seeming to anticipate and reject the independent state legislature theory, he wrote that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”

In 2015, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the court ruled that Arizona’s voters were entitled to try to make the process of drawing congressional district lines less partisan by creating an independent redistricting commission despite the reference to “legislature” in the Elections Clause.

“Nothing in that clause instructs, nor has this court ever held, that a state legislature may prescribe regulations on the time, place and manner of holding federal elections in defiance of provisions of the state’s constitution,” Justice Ruth Bader Ginsburg, who died in 2020, wrote in the majority opinion of the 5-to-4 decision.

Chief Justice Roberts was in dissent in that decision. On Tuesday, he wrote that the framers of the Constitution recognized that state legislatures “are bound by the provisions of the very documents that give them life,” meaning state constitutions.

He added, quoting from the records of the Constitutional Convention of 1787, that the “legislatures, the Framers recognized, ‘are the mere creatures of the State Constitutions, and cannot be greater than their creators.’”


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