Yesterday at the end of its term, the U.S. Supreme Court agreed to hear the case Moore v. Harper, which involves a deceptively simple question that could have huge implications for voting rights and redistricting in the United States: What exactly is meant by the word “Legislature” in the “Elections Clause” and the “Presidential Electors Clause” of the U.S. Constitution?
The Elections Clause states, “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;” and the Presidential Electors Clause states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” [emphasis added]
Moore v. Harper is a case brought by members of the North Carolina state legislature, who are urging the U.S. Supreme Court to reinstate a Congressional map that the North Carolina Supreme Court struck down as unconstitutional. For centuries, most states have enacted election laws the same way they enact other types of legislation: they are subject to legal challenge, they may face a veto, and some state legislatures delegate authority to administrative agencies like redistricting commissions.
However, the theory asserted by the members of the North Carolina legislature in Moore v. Harper argues that election law is different. That theory is known as the “Independent State Legislature Theory” (“ISL theory”) and it asserts that the U.S. Constitution gives state legislatures—and state legislatures alone—complete and unchecked authority over determining the Time, Places, and Manner of holding elections for U.S. Senators and Representatives. In this case, the North Carolina legislators argue that they can enact congressional maps that violate their own state constitution, and the North Carolina Supreme Court does not have the authority to enforce the state constitution to stop them. As Helen White at Protect Democracy describes, the most radical version of the ISL theory would hold that state courts cannot strike down state election law for federal elections, state legislatures cannot delegate election authority to other branches or administrative agencies, governors cannot veto the actions of state legislatures, and even state constitutional provisions are void insofar as federal elections are concerned. The version of the theory advanced in the North Carolina case is one of these more extreme versions.
Yet, there are several reasons to be skeptical of every version of the ISL theory. First, because constitutional doctrines increasingly rely upon historical analysis, commentators have pointed out that there are strong originalist reasons to reject the ISL theory here, here, here, and here. And to the extent precedent continues to carry any weight in the analysis (as it should), the ISL theory would be inconsistent with major Supreme Court decisions already on the books, such as McPherson v. Blacker (1892), Smiley v. Holm (1932), and Growe v. Emison (1993).
But more plainly, ISL theory is more fundamentally problematic within a Constitution grounded in checks and balances on unrestrained power. As Chief Justice Marshall wrote in Marbury v. Madison (1803), “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.” That is to say, if state legislatures have unreviewable power in any realm, no less over the very method used to give power itself (elections), then the current leadership of one branch of state government will have unlimited power.
The judiciary, whether federal or state, has the emphatic province to say what the law is, and that implicitly requires the courts to be able to determine whether a law has been violated. Laws are rendered meaningless if there is no remedy for their violation.
Nevertheless, some Justices seem open to the ISL theory. When this case came before the Court in an emergency stay application, Justice Alito was joined by Justices Thomas and Gorsuch in writing that the U.S. Constitution empowered state legislatures, and chose not to allow “each State to decide which branch, component, or officer of the state government should exercise that power.” Justice Kavanaugh did not join that dissent, but noted separately that ISL theory should be addressed by the Court soon. Chief Justice Roberts did not opine in that case, but he did advance a version of ISL theory in his dissent in Ariz. State Leg. v. Ariz. State Indep. Redistricting Comm’n (2015), where he would have found that state’s redistricting commission unconstitutional. Chief Justice Roberts may not be willing to go as far as the North Carolina legislature may wish however: in his 2019 majority opinion in Rucho v. Common Cause the Chief Justice wrote, with respect to elections for federal office, “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” This suggests that Roberts would retain a role for state courts in deciding whether state legislatures do, in fact, follow the law in the context of elections for federal office.
If the U.S. Supreme Court enshrines ISL theory into constitutional jurisprudence, the potential ramifications are wide-ranging and frightening. As Ethan Herenstein and Thomas Wolf at the Brennan Center explain, ISL theory “would cause significant disruption by potentially nullifying state constitutional provisions regarding federal elections.” They note that independent redistricting commissions, state constitutional bans on gerrymandering, and delegations of authority to elections commissions and secretaries of state could all be at risk. Opponents of reform might even try to challenge state ballot measures initiated by the people that have changed how federal elections are conducted — reforms like ranked choice voting, vote by mail, and changes to primaries.
In the case of an extreme ruling, only federal courts could review claims of voter suppression or race-based gerrymandering in federal elections (which would be of little protection), and no court in the country would have a say in political gerrymandering claims for congressional district lines. A less extreme ruling could hold courts as having regular authority over redistricting actions.
Can anything be done to prevent the fallout from a worst-case ruling? Notably, the Elections Clause itself states that “Congress may at any time by Law make or alter such Regulations.” This means congressional action can override state action insofar as elections for federal office are concerned. In short, federal legislation such as the Fair Representation Act, the Freedom to Vote Act, or other efforts to reform our federal elections would remain strong and constitutional options for protecting and strengthening our democracy.
As the electoral reform and voting rights communities brace for an adverse ruling in Moore v. Harper, we should continue to think of new ways to protect voting rights and enhance the representativeness of our political system in ways that do not rely upon – and can withstand – a U.S. Supreme Court that continues to be hostile to such efforts.