“Do state courts have the power to interpret their own state constitutions? The Supreme Court could be poised to say “no” — at least when it comes to redistricting and election law.
Last week, the Supreme Court agreed to hear the case Moore v. Harper in the coming fall term. In that case, Republican legislators in North Carolina are asking the court to overturn the state Supreme Court’s decision to throw out their gerrymandered congressional map and impose one of the court’s own.
Their argument rests on an extreme reading of the elections clause of the U.S. Constitution that posits that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the “independent state legislature” theory, state courts would no longer be able to intervene — even when a legislature violated the state’s constitution, as was found to be the case in North Carolina.
The independent state legislature theory is fewer than 25 years old, and for most of its life, it’s been relegated to the fringes of academia. But it was widely promoted by former President Donald Trump and his allies as they attempted to first undermine — and then overturn — the outcome of the 2020 presidential election. And several Supreme Court justices have already suggested that they’re on board with the theory. During litigation over election laws in Pennsylvania and Wisconsin in 2020, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch endorsed some version of the idea that state legislatures should have nearly unfettered power over how federal elections are run, and earlier this year, they said in an emergency-docket ruling that they would have ruled in favor of the North Carolina legislature.
If the Supreme Court sides with North Carolina Republicans in this case, it would have massive implications for election law. Depending on how the court rules, state courts might no longer be allowed to strike down legislatures’ proposed congressional maps for being gerrymandered. And if this happens, the way American elections are conducted would change in dramatic and destabilizing ways.”
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“An extreme embrace of the theory by the Supreme Court would hand legislatures power over every aspect of how federal elections are run, to the exclusion of not only state courts but also possibly other state actors like governors and election administrators. “It would be a voter suppressor’s fever dream,” Wolf said.”
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“the impact wouldn’t stop at redistricting. The Constitution’s elections clause also covers every aspect of how federal elections are run. That includes the 56 voting restrictions passed since the 2020 election — laws that require ID in order to vote, discourage absentee voting, move up voter deadlines, cut early voting, purge voters from the rolls and ban giving food and water to voters waiting in line.”
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“Similarly, courts would not be able to unilaterally change federal election laws in an emergency, like the Pennsylvania Supreme Court did in 2020 when it extended the deadline for absentee ballots to be received amid widespread delays in postal service. “If the state legislature says, ‘Polls close at 7 p.m.,’ and on Election Day, there’s a hurricane and the [state] Supreme Court says, ‘Keep them open until 10,’ the legislature wins,” Vladeck said.”
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“Some Trump allies have also argued that the independent state legislature theory empowers legislatures to appoint an alternate set of state electors — which, in 2020, could have overturned the presidential election. However, Leah Litman, a law professor at the University of Michigan, said that it’s important to remember that even the independent state legislature theory doesn’t mean state legislatures would be completely unchecked, because the U.S. Constitution would still apply. But she added that part of what alarms her about the theory is that it’s so unclear what embracing it would actually do. “It’s just kind of a mess,” she said of the theory. “We really don’t know what it would look like.””