Moore v. Harper: The Independent State Legislature Theory Gets Its Day In Court
by Vineet Chovatia
October 31, 2023
In a 6-3 decision, the Supreme Court ruled against the controversial independent state legislature theory put forth by plaintiffs in Moore v. Harper. Chief Justice John Roberts was joined by Justices Sotomayor, Kagan, Jackson, Kavanaugh, and Barrett in the majority with Justices Thomas, Alito, and Gorsuch dissenting. The ruling reaffirmed the power of state courts to review whether state election laws are in accordance with state constitutions.
Gaining prominence in recent years, the independent state legislature theory asserts that state legislatures are the highest authority on the facilitation of elections. The theory’s proponents claim that the Elections Clause in the Constitution gives state legislatures supreme power over federal election policy. According to the theory, state courts, governors, election administrators, and any other part of the state government have no power to alter the decisions of the legislature regarding federal elections.
Opponents claim that, under the theory, state legislatures could violate their state’s Constitution without consequence, severely gerrymander electoral maps, and pass voter suppression laws that previously would have been reviewable by state courts. Placing power over federal elections solely in state legislatures’ hands also means that state legislators could refuse to certify the results of a federal election without the possibility of intervention by election administrators or state courts.
In the case of Moore v. Harper, Republican legislators in North Carolina employed the independent state legislature theory to contest the state Supreme Court’s ruling, which declared the November 2021 electoral maps drawn by the GOP as an unlawful partisan gerrymander. Even though the North Carolina Supreme Court overturned its original decision in 2023 after rehearing the case, the state court reaffirmed its right to review whether congressional districting laws comply with state laws. Thus, the majority of the Supreme Court determined that the question of the merits of independent state legislature theory still required final judgment.
The petitioners claimed, as they had in state courts, that the Federal Elections Clause gave power to the North Carolina legislature to draw congressional district maps free from review by courts. Writing for the Court, Chief Justice Roberts rejected the petitioner’s interpretation of the Federal Elections Clause and as a result, declared the independent state legislature theory to be an illegitimate legal argument. Roberts argued that under the Framers’ understanding of the Constitution, “when legislatures make laws, they are bound by the provisions of the very documents that give them life.” Roberts cited Arizona State Legislature v. Arizona Redistricting Comm’n, as a recent decision in which the Court reaffirmed that state legislatures are subject to the constraints of their constitutions even with regard to federal election laws.
The majority opinion went on to refute petitioners’ claims that the Supreme Court’s decision in Leser v. Garnett provided precedent for independent state legislature theory. In Leser, the Court decided that in ratifying constitutional amendments, state legislatures perform a federal function that is bound only by the federal constitution. The petitioners argued that the same was true when states passed election laws, but Justice Roberts rejected their claim in the majority opinion by making a distinction between ratification and traditional lawmaking. Roberts argued that the Court has always held that states carry out traditional lawmaking when they pass election laws and are thus bound by their state constitutions when doing so.
In his dissent, Justice Thomas argues that Moore v. Harper “is a straightforward case of mootness.” Thomas argues that after the North Carolina Supreme Court overturned its 2021 decision, the result of the federal question before the Supreme Court could no longer provide any relief to the petitioners that the state Supreme Court had not already guaranteed. Even if the Court decided in favor of the petitioners’ application of independent state legislature theory, Thomas believes that they would not gain any new relief regarding congressional districting in North Carolina.
Justice Thomas then sides with petitioners on the federal question by asserting that the premises that they use to substantiate the independent state legislature theory are well-supported by the Court. As a result, he concludes that the majority mistakenly applied the Court’s decisions in Arizona State Legislature and similar cases to decide against petitioners on the federal question. Justice Thomas distinguishes the precedent cited by the majority and the case before the Court by distinguishing procedural limits and substantive limits on the passage of election laws. He believes that the precedent cited by the majority concerns procedural limits and does not answer the question of whether substantive limits can be imposed “on the times, places, and manners that a procedurally complete exercise of the lawmaking power may validly prescribe.”
In firmly rejecting the strongest forms of independent state legislature theory, the Supreme Court protected Americans from egregiously undemocratic practices that legislative majorities are attempting to implement across the country. While the decision will not prevent state legislatures from passing voter suppression laws and partisan gerrymandering, the ability to challenge such legislation in state court is now protected. Most importantly, state courts can now definitively intervene to block extreme attempts to overturn valid election results.