SCOTUS Seems Ready to Reject Independent State Legislature Idea in a Win for Democracy

It is often difficult, if not impossible, to tell what the Supreme Court is thinking about a case from the questions the justices ask counsel. But the argument in Moore v. Harper, heard by the Court in early December, was different. By the end, it was clear the Supreme Court has no appetite for the independent state legislature theory—and that offers hope for the future of America’s democracy.

The theory—that state legislatures have the unreviewable power to set the rules of their state’s federal elections—is a dangerous one. The case began when the North Carolina legislature redrew the congressional-districts map that would apply in federal congressional elections and the North Carolina Supreme Court invalidated that map under the state constitution. The state legislators appealed that decision to the U.S. Supreme Court, claiming, under the independent state legislature theory, that the legislature has exclusive power to regulate federal congressional elections, without oversight from the state supreme court under the state’s constitution.

If the U.S. Supreme Court were to adopt this theory, it would foreclose state-supreme-court review of congressional-redistricting maps and other federal-election regulations enacted by the state legislatures, causing mayhem in the state-administered federal elections. Before the argument in Moore, I wrote in The Atlantic that the independent state legislature theory has literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding. And it is antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution. This was painfully evident for the proponents of the theory during the three-hour argument before the justices.

The Court seems poised to reject the misnamed independent state legislature theory and hold that redistricting maps are reviewable by the state courts for compliance with their state constitutions, as they have been since the nation’s founding. If the Court attempts to constrain the state supreme courts at all, which it ought not, it will do so by setting a standard of review for those courts to follow when reviewing state election laws. That standard will almost certainly be highly permissive of the state supreme courts, in recognition of the Court’s exceedingly limited role in reviewing state-supreme-court interpretations of their constitutions in the context of elections-clause challenges to state-enacted federal-elections laws.

(A small chance exists that the Supreme Court will not rule in the case at all, because the North Carolina Supreme Court’s grant of rehearing in Moore v. Harper could deprive the U.S. Supreme Court of “final judgment” jurisdiction or eventually could cause the Court to declare the case moot. Presumably worried by the oral argument at the Court in December, the North Carolina legislators have asked the newly reconstituted North Carolina Supreme Court to overrule its own decision in Moore. The state supreme court that originally decided Moore was 4–3 Democrat, but the Republicans picked up two seats in the state election last November and now have a 5–2 majority. In response to the state supreme court’s grant of rehearing, the U.S. Supreme Court asked the parties to brief whether there is still a “final judgment” for the Supreme Court to review. There is, and both the petitioners and respondents have so advised the Supreme Court, so the Court seems more than likely to still rule.)