The U.S. Supreme Court has agreed to hear a North Carolina case questioning whether state courts have the power to nullify legislative actions to regulate federal elections or draw congressional districts. Put another way, the case ponders whether a legislature can ignore its own state constitution when establishing election procedures for federal elections and drawing congressional districts.
Because Moore v. Harper involves federal elections only, a plausible outcome of the Court’s ruling could be voters facing two different standards for voter registration and election administration for federal and state elections, even if they are conducted on the same day and on the same ballot.
The case arose over redistricting in North Carolina. The Republican-led legislature adopted a map giving Republican candidates the advantage in 10 of 14 congressional districts after former President Trump carried the state by 1 point over Joe Biden in 2020. The state supreme court ruled the map violated the state constitution and adopted a new map. The U.S. Supreme Court let the court-drawn map stand, but Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented, arguing that the Court “will have to resolve this question sooner or later, and the sooner we do, the better.”
At play is a legal theory envisioning an “independent state legislature” (ISL) that has the sole power, standing on its own and not part of a broader construction of state government (e.g., the governor, the state’s chief election officer and the state judiciary), granted by the U.S. Constitution to prescribe “the times, places and manner of holding elections for Senators and Representatives.”
ISL was one of the core legal theories supporting non-fraud litigation filed by Trump’s allies to contest the 2020 presidential election, including Atty. Gen. Ken Paxton’s (R) suit to invalidate the results of other states’ elections. ISL theory holds that those states’ elections administrators and courts failed to follow state law and “tainted the integrity of their own citizens’ vote” and, by extension, “every other state that held lawful elections.” The Supreme Court refused to hear Paxton’s suit for lack of standing.
In another case, ISL was used to argue that absentee ballots received during an extended return period granted by the Pennsylvania Supreme Court should not be counted. According to ISL theory, the state supreme court usurped the legislature’s authority to establish the window within which absentee ballots could be accepted and still be counted. Alito put the counting of those ballots on hold. They were eventually counted after a deadlocked Supreme Court allowed the lower court order to stand. Alito, Gorsuch, Thomas and Justice Brett Kavanaugh would have granted the stay, preventing the ballots from being counted. In this case, the number of ballots in question was far lower than the margin of Biden’s victory there, but that will not always be the case.
ISL theory grew out of the 2000 Bush v. Gore ruling, in which then-Chief Justice William Rehnquist wrote that federal judicial intervention may be needed to ensure “post-election state court actions do not frustrate the legislative desire.” Alito endorsed some form of ISL in his March dissent mentioned above. The Elections Clause “specifies a particular organ of a state government, and we must take that language seriously” when it could have left it to “each state.” Thus, “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” [Emphasis in original].
One consequence of the U.S. Supreme Court fully endorsing ISL would be the potential that state legislatures could intervene in election administration and decide, by majority vote, which ballots will count and which will not while votes are being cast and counted. Another potential consequence could be a legislature sending its own slate of presidential electors if, by majority vote, it feels like the state’s election administration yielded the wrong result.
The Court could also partially endorse ISL by creating a judicial standard to test the degree to which a state court’s decision or agency rule deviates from – or, more likely, adds detail to – legislative provisions. It could also reject the theory entirely, but that seems unlikely given the Court’s current makeup. There are already five justices – the four listed above and Chief Justice John Roberts – who have indicated at least some support for ISL theory.
In a 2015 case, the Court adopted an interpretation of the Elections Clause that “permits the people of Arizona to provide for redistricting by independent commission. The history and purpose of the Clause weigh heavily against precluding … a commission operating independently of the state legislature to establish congressional districts.” That ruling was 5-4, and three of the justices in that majority are no longer on the Court, which has shown a recent propensity to overturn past precedents.
If the Election Clause were to be interpreted as ISL theory prescribes, then every single voter initiative and referendum nationwide with any impact on federal elections could be invalidated by either the federal courts, as Rehnquist suggested, or by the legislatures themselves by simple majority votes, with or without the support of the governor.
This could be one of the most consequential decisions of the Court’s upcoming term.
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