An obscure legal theory promoted by allies of former President Donald Trump during the effort to overturn the 2020 presidential election will soon have its day before the Supreme Court.
With the midterm elections – and 2024 presidential rumors – serving as a backdrop, the Supreme Court will start a new term next month and take up a voting rights case that could fundamentally change the landscape of election law by turning a dispute over gerrymandering and congressional districts into one that could hypothetically change the way American elections are decided.
Voting rights groups fear that the case could lead to the ability of rogue state legislators to act unchecked when it comes to rules concerning federal elections such as the drawing of district lines, early voting rules and voter ID requirements. And a group of chief judges from around the country are worried as well.
“This case could unsettle almost every aspect of federal election administration,” Allison Riggs, chief counsel for voting rights for the Southern Coalition for Social Justice, said in an interview.
Arguments will likely occur in November or December and many Republicans – who have controlled the majority of state legislatures since 2010 – are delighted that the conservative-leaning Supreme Court will wade into the issue.
John Eastman, the lawyer who served as a key architect of the push to overturn election results for Trump, has filed a sweeping amicus brief asking the justices to adopt the legal theory that lay mostly dormant until after the 2020 election. Lawyers for the Republican National Committee scaled back on some of Eastman’s arguments, but they, too, want the justices to adopt a version of the theory.
Began as a gerrymandering dispute
On the surface, Moore v. Harper presents a redistricting dispute out of North Carolina involving a lower court decision that invalidated the state’s congressional map. The court struck the map – calling it an illegal partisan gerrymander – and replaced it with a court-drawn map that was more favorable to Democrats.
Republican legislators from North Carolina are asking the justices to reverse the lower court and adopt a legal theory called the independent state legislature doctrine. They point to the Elections Clause of the Constitution that provides that rules governing the “manner of elections” must be prescribed in each state legislature.
Under the theory, state legislatures should be able to set rules in federal elections without being held in check by state constitutions either through interpretation by state courts or by the functioning of commissions created under state constitutional reforms.
Traditionally, legislatures have set ground rules for conducting an election, but have not acted alone or with the final word. Processes set in place have been subject to intervention by election administrators and state courts.
But the strictest reading of the independent state legislature theory says that state courts, when it comes to federal elections, must stay out.
The majority of the North Carolina state Supreme Court, in ruling against the lawmakers, said that legislators do not have unlimited power to draw electoral maps. The state court acknowledged that redistricting is primarily delegated to the legislature but said it must be performed in “conformity with the State Constitution.”
The Republican lawmakers appealed to the US Supreme Court, arguing in court papers that the “text of the Constitution directly answers the question presented in this case.” The Elections Clause provides “unambiguous language” concerning the manner of federal elections and makes clear that the rules will be drawn by the legislatures.
“Yet in the decision below, the North Carolina Supreme Court invalidated the state legislature’s duly enacted congressional map and decreed that the 2022 election and all upcoming congressional elections in the State were not to be held in the ‘Manner pre-scribed … by the Legislature thereof ‘but rather in the manner prescribed by the state’s judicial branch,” David Thompson of Cooper & Kirk, a lawyer representing the North Carolina legislators, said in court papers.
Thompson said that the framers “did not assign any role in this policymaking process to state judges.”
Voters in the state as well as voting rights groups urged the justices to stay out of the dispute and let the lower court ruling stand.
“The text, history and structure of the federal Constitution reject the notion that state legislatures are unbound by their state constitutions as interpreted by state supreme courts when redistricting under the Elections Clause,” Riggs, one of their lawyers, wrote in legal briefs.
In an interview, Riggs warned that if the court were to adopt strict versions of the independent state legislature doctrine it could lead to separate rules for federal and state elections that would strain states and confuse voters.
She said it could also invite challenges related to post-election disputes when a legislature simply does not want to accept electors that reflect the state’s voting outcome.
Alito says theory must be taken ‘seriously’
At an earlier stage of the case, three conservative justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, expressed some sympathy for the theory and said the case presented an “exceptionally important and recurring question of constitutional law.”
The North Carolina Republicans had asked SCOTUS to grant an emergency stay of the lower court order. That request was rejected, but Alito said in a dissent that the language of the Elections Clause must be taken “seriously.”
He remarked that the state Supreme Court justified its actions to block the map on the grounds that the map constituted a partisan gerrymander and thus violated state constitutional provisions. But for Alito, those state constitutional provisions don’t say anything directly about partisan gerrymander.
“If the language of the Elections Clause is taken seriously,” Alito wrote, “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”
After the lawmakers lost that emergency order, they came back to the high court asking the justices to hear the case on the merits and the court agreed.
Some election law experts push back on the notion that a muscular view of the doctrine would clear the way for legislators to disregard something akin to a Joe Biden victory and a state’s popular vote to allow Trump supporters to appoint their own electors.
“It could radically alter how much discretion state legislators have in administering federal elections, but it does not give a legislature the power to ignore a popular election for president and choose its own slate of electors,” Derek T. Muller at the University of Iowa College of Law, said in an interview with CNN.
Muller says there are other barriers based on federal law and the federal constitution that prevent a state legislature from ignoring a popular vote.
“A ruling here in favor of the state legislators might embolden them to try to throw out election results next time, but they will ultimately be stopped,” he said.
Jason Torchinsky, a lawyer for the Republican National Committee, agreed. “Existing federal law provides robust protections against post-election mischief, like changes to valid election results,” he wrote in an amicus brief.
Torchinsky also resists the notion that state courts will no longer have any role if the US Supreme Court were to adopt the independent state legislature doctrine.
“In the redistricting context, state courts can play a role when there is an express authorization in the state constitution or the state statute, or when there is a deadlock when the political branches can’t agree,” he said.
But in the case at hand, Torchinsky added, “there is no partisan gerrymandering criteria in the state constitution and the state Supreme Court made it up.”
Input of Eastman and Leonard Leo
In his brief, Eastman representing the Center for Constitutional Jurisprudence – the public interest law arm of the Claremont Institute – lambasted the lower court opinion.
“The court below, contrary to the Constitution’s unambiguous assignment of power to the state legislature, set the ‘manner’ for conducting congressional elections itself, thereby removing the power over elections from the most accountable branch of government (the legislature) to the least accountable branch of government (the judiciary),” he wrote.
Honest Elections, part of a network of groups established by Leonard Leo, now a co-chair of the Federalist Society Board, has also filed a brief in support of North Carolina. Leonard played a crucial role advising the Trump administration on judicial appointments.
Jason Snead, executive director of Honest Elections, said that he believes the case is about reining in an activist judiciary.
“We have seen a disturbing trend where state courts are increasingly willing to go behind closed doors and rewrite the rules of our elections,” Snead said. “This is just about ensuring that elected lawmakers are writing election laws, that those laws are being honored and that courts are not exceeding their authority and acting as super lawmakers.”
Rare input from chief justices around the country
But a rare brief filed in support of neither political party has drawn the attention of critics of the independent state legislature doctrine. It was filed by the Conference of Chief Justices – a group comprised of chief justices or chief judge of courts of last resort in all 50 states.
The group rarely files amicus briefs, and it takes no position in the redistricting dispute at the center of the case, but it deeply skeptical of the independent state legislature doctrine.
“The Elections Clause does not bar state court review of state laws governing federal elections under state constitutional provisions,” Carter Phillips, a lawyer for the group, wrote.
Phillips, targeting members of the high court who look to the framers’ original intent when reviewing cases, argued that “framing-era history confirms that the Framers did not create an exception to state constitutional supremacy, including the State’s power to establish judicial review, in the Elections Clause.”
The federal constitution does not “oust state courts from their traditional role in reviewing election laws under state constitutions,” Phillips added.