“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” – United States Constitution, Article 1, Section 4
The United States Supreme Court declined to endorse that theory today, handing down a 6-3 decision that rejected a bid to give state legislatures wide-ranging authority in drawing congressional maps and regulating federal elections.
Chief Justice John Roberts wrote the majority opinion which preserves the ability for state courts to hear partisan gerrymandering lawsuits in congressional redistricting and review other federal election rules set by state legislatures. Conservative Justices Amy Coney Barrett and Brett Kavanaugh sided with the three liberal justices – Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
Justices Neil Gorsuch, Clarence Thomas and Samuel Alito were in the minority.
The “independent state legislature” theory first made an appearance at the Supreme Court in a concurring opinion by then-Chief Justice William Rehnquist in Bush v. Gore, the case that halted the recount in Florida in the 2000 presidential election. In an opinion joined by Justices Antonin Scalia and Thomas, Rehnquist contended that the recount ordered by a state court violated the legislature’s authority under the electors clause because it conflicted with the deadlines set by the state legislature.
The theory resurfaced again three years ago, in a challenge by Pennsylvania Republicans to a ruling by the Pennsylvania Supreme Court that – relying on the state constitution – extended the deadline for absentee ballots in the November 2020 elections. The justices rejected the group’s request to fast-track its challenge, but Alito (in an opinion joined by Thomas and Gorsuch) suggested that the extension of the deadline to count ballots likely violated the elections clause.
Roberts agreed that the court did have the power to decide the case on the merits, reasoning the Republican legislators still had a stake in the outcome of this proceeding, allowing the court to move forward.
Roberts emphasized a long tradition in U.S. history of state courts invalidating laws that violate state constitutions. As the Supreme Court’s cases make clear, he wrote, there is no exception to this tradition for laws relating to elections.
At the same time, Roberts cautioned, “state courts do not have free rein” to strike down state laws governing elections. Because the elections clause gives state legislatures power over governing federal elections, he said, federal courts “have an obligation to ensure that state court interpretations of that law do not evade federal law.”
Thomas, in a dissenting opinion joined by Alito and Gorsuch, wrote today that he would not have reached the “independent state legislature theory” question at all. Instead, he would have dismissed the case as moot – that is, no longer a live controversy.
The ruling handed a defeat to Republican lawmakers in North Carolina, who advanced the independent state legislature theory as they appealed a lawsuit involving the state’s congressional map.
The lawmakers had argued the federal Constitution vests the authority for regulating federal elections exclusively in state legislatures, meaning the North Carolina Supreme Court and state constitution had no power to block the Legislature’s approved congressional map.
“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote for the majority.
“Today’s decision from the Supreme Court is a resounding victory for free and fair elections in the United States,” said Abha Khanna, Counsel of Record for the Harper Plaintiffs in Moore v. Harper. “The independent state legislature theory is a dangerous, fringe legal theory that has no place in our democracy. In its most extreme form, the Independent State Legislature Theory could have weakened the foundation of our democracy, removing a crucial check on state legislatures and making it easier for rogue legislators to enact policies that suppress voters and subvert elections without adequate oversight from state court. We are incredibly relieved that the Supreme Court decisively rejected this dangerous theory.”
The Committee Of Seventy, an advocate for better government in Philadelphia and Pennsylvania, tweeted, “The U.S. Supreme Court’s rejection today of the radical Independent State Legislature theory protects checks and balances in our government and affirms that no one branch can dominate the others—especially on all-important election matters.”