What Is the Independent State Legislature Theory?
The date has been set for oral argument in Moore v. Harper, a Supreme Court (SCOTUS) case that could have lasting implications on how state legislative action on federal elections can be challenged. SCOTUS is slated to hear oral argument on December 7.
Moore v. Harper centers around the congressional district map drawn by the then Republican-controlled North Carolina Legislature in the wake of the 2020 decennial census. The new map, which the legislature adopted on November 4, 2021, was challenged in court. Plaintiffs alleged the legislature violated the state constitution’s ban on partisan gerrymandering.
The North Carolina Supreme Court sided in favor of the plaintiffs and ruled that the map drawn by the legislature could not be used in the 2022 election. A trial court then adopted a new congressional map drawn by three court-appointed experts.
In the state supreme court’s ruling, Justice Robin Hudson wrote:
“Today, we answer this question: does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote? Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others? We hold that our constitution’s Declaration of Rights guarantees the equal power of each person’s voice in our government through voting in elections that matter.”
Ahead of the May 2022 primaries, the state legislature’s leadership took action. First, in February, they asked SCOTUS to halt the state court’s order. The Supreme Court denied the request, but granted House Speaker Timothy F Moore’s petition to review the case in June.
The Independent State Legislature Theory
Three SCOTUS justices dissented to the court’s decision to not halt the North Carolina Supreme Court’s order – Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch. They believe the independent state legislature theory (ISL) – which is critical to Moore’s argument – should be resolved by the court.
The independent state legislature theory (ISL) asserts that when it comes to decisions and oversight over federal elections, elected members of the state legislature should be free from state court interference, and their authority over federal elections supersedes state law (including a state’s constitution) and citizen ballot initiatives.
The theory comes from a stringent and literal interpretation of Article 1, Section 4 of the US Constitution:
“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 [choosing] Senators.”
The Elections Clause has long been understood to mean that the authority of elections falls to the legislative process of each state, as dictated by the state's constitution. This would allow for an avenue of checks and balances by the other branches of state government.
Those who argue for ISL argue that if the Elections Clause meant the legislative process in general, the wording would have stopped at “prescribed in each state,” and not included “by the Legislature thereof.”
Strict adherence to ISL means a state supreme court cannot overrule congressional maps redrawn by the legislature, a state constitutional ban on partisan gerrymandering doesn’t matter, and independent redistricting commissions are powerless.
Oh, and lest we forget: Citizens would have no right to pass election-related initiatives. While ISL is often associated with gerrymandering, a full embrace of ISL would mean that any laws, rules, and regulations of federal elections would apply as well.
Further, defenders of ISL argue that it extends to both the Elections Clause in Article I of the Constitution, and the Electors Clause in Article II, Section 2:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
Notice the language is not entirely the same, as it says the state legislature "may direct," not "shall" or "must" or any absolutely definitive term.
Election deniers in 2020 pointed to ISL as justification their demands that state legislatures throw out presidential election results they didn’t agree with and appoint electors that served the interest of the legislative majority.
The Supreme Court has long rejected ISL by majority opinion – most recently in the 2015 case, Arizona State Legislature v. Arizona Independent Redistricting Commission. The majority opinion, written by the late Justice Ruth Bader Ginsburg, essentially flips the script on the ISL argument, establishing that there is nothing in the wording that frees legislatures from state judicial review.
“We resist reading the Elections Clause to single out federal elections as the one area in which States may not use citizen initiatives as an alternative legislative process. Nothing in that Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution. See Shiel, H. R. Misc. Doc. No. 57, at 349–352 (concluding that Oregon’s Constitution prevailed over any conflicting leg-islative measure setting the date for a congressional election).”
The makeup of SCOTUS has since drastically changed. Most of the 6 Republican-appointed justices have expressed interest in iSL, including the three who would have given the North Carolina Legislature a stay on the state supreme court’s ruling.
Voters Need to Follow This Case
Moore v. Harper has many people concerned, as a strict application of ISL would be disastrous in a political environment where elected public officials act, not in the interest of voters, but for themselves and their party.
SCOTUS’ s ruling could have far lasting ramifications than people realize, and not just on the subject of gerrymandering. US politics has devolved to a state where the legitimacy of elections is challenged just because one side didn’t get their way.
Complete adherence to ISL means elections would be subject to the full whims of partisan lawmakers, whose top priority is the success of their party. It’s a frightening prospect to consider – especially for those who are working hard to reform an already rigged system.
It is not a guaranteed outcome. At issue in Moore v. Harper is not only state judicial review in election matters, but the ability of the state judiciary to nullify and then replace the legislature’s policies and regulations with regulations from their own devising.
In other words, can the state judiciary prescribe the rules it determines is appropriate to ensure “free and fair” elections? It is a legitimate issue for the court to consider.
Considering the implications of the case, it is surprising how little media attention it has gotten. It is a Supreme Court case all voters should read up on and keep track of as oral argument is presented in December and a decision is likely in 2023.