What the Supreme Court's rejection of a controversial theory means for elections
The U.S. Supreme Court's decision to reject the most extreme version of the "independent state legislature theory" is expected to bring some stability to the 2024 elections — and invite more lawsuits.
Updated June 30, 2023 at 5:29 PM ET
A major U.S. Supreme Court ruling that rejects the most extreme version of a once-fringe legal theory has eased the anxiety of many election watchers across the country.
In a 6-3 opinion from an unusual lineup of both conservative and liberal justices, the court's majority confirmed Tuesday that — contrary to what's known as the "independent state legislature theory" — state lawmakers' power under the U.S. Constitution to control how congressional elections are run can be checked and balanced by state courts and state constitutions.
With 2024 looming, here's what the high court's ruling means for upcoming elections:
The ruling brings some stability to the 2024 elections
As the justices considered this theory in the lawsuit known as Moore v. Harper, many legal scholars warned that the court's endorsement of it could threaten to upend the country's decentralized election system, which is mainly run by state and local officials.
A ruling that sided with the Republican North Carolina state lawmakers who brought the case could have spurred second-guessing of past state court rulings that have interpreted state laws to determine how states should conduct their elections for all levels of government.
"There would have been a possibility of different rules for state and federal elections, even under the same law," explains Carolyn Shapiro, a professor at Chicago-Kent College of Law who has written about the theory's origins and submitted a friend-of-the-court brief against the theory. "So there would have been enormous chaos."
Instead, election workers can now move forward with more certainty that they're carrying out their state's election system with the same rules and processes for all levels of races.
The court's repudiation of the most extreme form of the theory, Shapiro says, also keeps in place a separation of powers at the state level that has allowed state courts to step in to ensure that the election rules set by state lawmakers follow their state's constitution.
"Constitutional checks and balances dodged a bullet," Shapiro says about the impact of the U.S. Supreme Court's ruling. "And overall, democracy dodged a bullet."
But the ruling does leave open a complicated legal question about congressional elections
While the court's majority found state legislatures' authority over congressional elections is not exempt "from the ordinary constraints imposed by state law," including review by state courts, the justices also issued a warning about a limit to what state courts can do.
"In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution," Chief Justice John Roberts wrote in the majority opinion.
Exactly what those boundaries of "ordinary judicial review" are, however, is unclear.
And that could invite requests for the U.S. Supreme Court to review whether a state court's ruling in a case about congressional elections may have gone too far.
"This is a court that doesn't want to give up control over things," Vikram Amar, the dean of the University of Illinois College of Law who filed a friend-of-the-court brief opposing the theory, said about the high court Tuesday during a press briefing organized by the Brennan Center for Justice at New York University School of Law. "It's not surprising that they would reserve some authority for themselves to step back in if state courts go awry."
Amar added the majority's opinion shows signs that the court doesn't have a "great appetite" for supervising how state courts oversee federal elections.
To Jason Torchinsky — an attorney who wrote briefs on behalf of the Republican National Committee and the National Republican Redistricting Trust in support of the North Carolina Republican state lawmakers — "what it means is more cases are coming."
The way Torchinsky sees it, the U.S. Supreme Court has now adopted what he considers a narrow version of the independent state legislature theory, and the full meaning of it is waiting to be tested with more lawsuits.
"I think that the first case to get there may well be a redistricting case out of Wisconsin," says Torchinsky, referring to the possibility of a lawsuit over the state's congressional map that would be heard by the Wisconsin Supreme Court's new liberal majority. "Then, out of the 2024 elections, I think there's a decent chance somebody goes to a state court and asks them to do something off the rails that could get presented to the U.S. Supreme Court."
North Carolina still needs a new congressional map, and Ohio's map is in question, too
Despite having major implications on election law, the U.S. Supreme Court's ruling has no direct effect on what initially sparked this legal fight — North Carolina's congressional map.
That's because the new Republican majority of the North Carolina Supreme Court made the unusual move in April to overrule the state court's earlier decision to strike down the Republican legislature-approved map for violating the state's constitution.
The state's Republican-controlled legislature is now expected to come up with a new congressional map.
Days after the U.S. Supreme Court issued its decision for the North Carolina lawsuit, it issued an order Friday that sent a similar case about Ohio's contentious redistricting plan back to the Ohio state Supreme Court for "further consideration in light of Moore v. Harper."
Republican state lawmakers in Ohio had tried to get the country's highest court to hear their argument about how the independent state legislature theory applies to their case.
As part of Ohio's drawn-out redistricting process for the 15 seats in the U.S. House of Representatives the state was allocated after the 2020 census, the Ohio Redistricting Commission — made up of politicians — ultimately adopted a map in March 2022 that Ohio's state Supreme Court later found "unduly favors" the Republican Party while disfavoring the Democratic Party.
The state court struck down the map, citing the Ohio Constitution's ban on partisan gerrymandering that the state's legislature helped put into place. That state constitutional ban also gives the state's Supreme Court the power to invalidate maps that violate the ban.
Republican state lawmakers, however, have refused to follow the state court's order to draw a new map and appealed that ruling to the U.S. Supreme Court, arguing that the state court overstepped into congressional redistricting duties that, according to the theory, are reserved for state lawmakers.
Now, the case returns to Ohio's Republican-controlled state Supreme Court, where the lineup of justices has changed since the court rejected the state's congressional map as gerrymandered to favor Republicans.
After last year's elections, current Republican Chief Justice Sharon Kennedy, who voted to accept the map, took over for the now-retired Chief Justice Maureen O'Connor, a Republican who joined the court's three Democratic justices in striking down the redistricting plan.
Edited by Megan Pratz
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