Is Democracy Constitutional?

In Moore v. Harper the Supreme Court will decide if anyone besides itself should be able to adjudicate American election law.

Illustration showing circular black-and-white pictures of Supreme Court justices and a column over an orange background
Brooks Kraft / Getty; Mark Wilson / Getty; The Atlantic

About the author: Adam Serwer is a staff writer at The Atlantic.

Every American child in public school learns that the U.S. political system is one of checks and balances, in which the judicial, executive, and legislative branches constrain one another to ensure that no one branch of government exercises too much power. One pending case before the Supreme Court asks: What if they didn’t?

In Moore v. Harper, North Carolina Republicans are arguing that no other state body, including the state supreme court, has the power to restrict the legislature’s ability to set voting rules—specifically ones allowing legislators to gerrymander the state, in defiance of a ruling by the state supreme court finding that their plan violated the state constitutional amendment guaranteeing the right to vote. This belief is based on a crank legal premise called the “independent-state-legislature theory.”

The justification for this theory is that the U.S. Constitution’s text about state legislatures setting election rules refers not simply to passing laws or adopting state-constitutional provisions regarding voting, but to an authority to decide such matters unilaterally. State legislatures themselves pass laws and participate in the process of adopting constitutional amendments; it makes no sense to argue, as the independent-state-legislature theory does, that such bodies are not bound by rules they themselves have set. Nevertheless, this idea is the kind of obtuse, context-free pedantry that malicious lawyers adore. As the election-law expert Rick Hasen writes, in its most extreme interpretation, this theory would mean that a state legislature could simply overturn federal election results it did not like based on its perception, no matter how unfounded, that the rules were violated. Hypothetically, the Supreme Court could check such abuse of power; its capture by the Republican Party means that, in practice, it might not.

“We have run elections the same way for 230 years in this country. And under that 230-year history, the independent-state-legislature hearing has not been the law,” Thomas Wolf, an election-law expert with the Brennan Center, told me. “It’s mainly been moving forward under gas that’s been provided almost entirely by just a few conservative justices on the Supreme Court, effectively citing themselves for the proposition.”

You’d think that the theory’s recent vintage would make it anathema to self-identified originalists, but among most of the justices this philosophy is implemented with scarcely more rigor than one might put into scanning Wikipedia to win an argument with a stranger online. More disturbing, the popularity of the theory among conservative legal elites is further indication of their commitment to an idea of “democracy” in which the Republican Party is simply not allowed to lose, and of their desire to alter the system to ensure that it cannot.

The independent-state-legislature theory has drawn a great deal of attention for its most radical potential application, the possibility of a legislature voting to throw out its state’s presidential-election results and appointing electors to favor the candidate of its choice. This is what Donald Trump tried to get Republican-controlled states to do after he lost in 2020. But even in the narrower example before the Supreme Court, the adoption of this argument would allow state legislatures a dangerous level of influence over who wins federal office. This is such a mockery of the very idea of representative democracy that you would think it would be dismissed out of hand: If you don’t like how things are, vote. But also, the people in power get to decide whether your vote counts, and virtually no one can check them.

The beginnings of this idea came from a concurrence in Bush v. Gore, the case that threw the 2000 election to George W. Bush, written by the segregationist and then–Chief Justice William Rehnquist, joined by Clarence Thomas and the late Antonin Scalia. The opinion in that case infamously declared itself non-precedential, but the theory has gained popularity in recent years anyway, because of its usefulness to Republicans trying to change 2020 state-election rules to favor then-President Donald Trump. It is perhaps not a coincidence that there are as many justices who worked as lawyers for Bush in that case as there are Democratic appointees.

Indeed, as Helen White of Protect Democracy writes, in election cases in 2020, Justices Neil Gorsuch, Samuel Alito, Clarence Thomas, and Brett Kavanaugh “all indicated that they would have adopted the theory and its vast consequences.” That theory, she notes, is “at odds with more than a hundred years of Supreme Court precedent and would disrupt whole bodies of law written by state legislatures and reviewed by state courts relying on that precedent.” That might be true. But it is not at odds with the partisan interests of the right-wing justices, a far more important factor in Supreme Court decisions.

This outcome in Moore v. Harper would not affect state and local contests, but in large part Republicans have already succeeded in election-proofing legislatures in states they control by drawing district lines to favor Republican-leaning constituencies. In closely divided states such as Wisconsin, gerrymandering and geographic polarization mean that the GOP can win some two-thirds of state legislative seats with less than half of the statewide vote.

Other states have made progress in trying to end partisan gerrymandering, through constitutional amendments or state redistricting commissions. But if the Supreme Court accepts the independent-state-legislature theory, that progress would be entirely wiped out. In the 2019 case Rucho v. Common Cause, the Supreme Court said that federal courts couldn’t review partisan gerrymandering, but that that was fine because state courts could, based on provisions in state constitutions. Many states have constitutional amendments protecting the right to vote. But those would be irrelevant if state courts had no power to review a legislature that violated that right.

“The Court said, ‘Never fear. If you want to address partisan gerrymandering, go to state courts, because state constitutions provide people with an avenue forward,’” Wolf told me. “If the Court then turns around three or four years later and says, ‘Actually, state constitutions don’t constrain legislatures and their federal-election lawmaking,’ then the promise of Rucho was a false promise.”

The sheer number of catch-22s involved here can be confusing. Federal courts cannot review partisan gerrymandering, so the people should turn to state courts, which also can’t. If you want to protect voting rights, you must do it by federal legislation, except the Supreme Court will decide that that legislation is unconstitutional, because it violates imaginary principles unmentioned in the Constitution. Political questions must be decided by the people, except if those in power conclude that they don’t like how the people might decide them.

This can all be reconciled given the Republican Party’s de facto position that elections are by definition illegitimate if the GOP does not win them, and that the Democratic Party’s constituencies are less American and therefore their votes should count for less. Counter-majoritarian mechanisms such as the Senate and the Electoral College have already allowed the GOP to win presidential elections and gain control of the Supreme Court without a majority of voters. The adoption of the independent-state-legislature theory would strengthen the party’s ambition to lock itself in power indefinitely regardless of how the electorate votes.

With the election lies he used to justify an attempt to overthrow the government, Trump gave voice to the idea that Democratic voters are inherently illegitimate. But Republican elites had been scheming for years to implement voting restrictions that would give conservative constituencies more power, and no institution has been a greater ally to states looking to disenfranchise their constituents than the Roberts Court. The Supreme Court’s right-wing majority has repeatedly twisted its own arguments and the text of the Constitution into knots in order to approve of Republican voting restrictions, while striking down any liberal efforts to defend the right to vote that it disapproves of.

“Democratic backsliding in the U.S. has followed a pretty clear historical pattern: The Supreme Court directly or indirectly enables state legislatures to restrict civil and political rights, and Congress decides whether to get its act together to stop them—and it often doesn’t,” Jake Grumbach, the author of Laboratories Against Democracy, told me. “The filibuster makes this pattern even more stark, since state legislatures don’t tend to have supermajority requirements to weaken democracy, but Congress, the only institution to stop state legislatures from backsliding, now requires supermajorities to pass policy to protect democracy.” And, of course, if by some miracle Congress acts, the Roberts Court can simply invalidate that legislation, based on whatever esoteric right-wing scheme happens to be in fashion among conservative lawyers.

There is an underlying perception of partisan interest driving GOP hostility to voting rights that is incorrect but nevertheless important to understand. Many Republicans are under the misimpression that “demographic change” favors Democrats, while many Democrats believe that Republican racism will prevent their opponents from appealing to minority constituencies. Conversely, the ideological, religious, and ethnic diversity of the Democratic coalition means the party cannot target and disempower the rival party’s voters the way the GOP can.

The 2020 elections suggest, however, that assumptions about the political effects of a diversifying United States are incorrect. Greater turnout does not advantage Democrats, and nonwhite voters are not immune to Republican appeals. Growing support for the GOP among Latinos suggests that they are following the same path of assimilation as prior immigrant groups, just as immigration advocates said they would, and as immigration restrictionists loudly insisted they would not, often in racist and demeaning terms.

Still, there is no moral equivalence between defending Americans’ fundamental rights out of partisan interest, and effacing them out of partisan interest. Reconstruction-era Republicans’ defenses of Black rights are not less admirable because the party would not have been viable in the post–Civil War South without them, just as the Democrats’ disenfranchisement of Black men in the same era is no less racist or abhorrent because it was in pursuit of one-party rule. Democracy relies on the self-interest of politicians to protect the rights of their constituents, not on the virtue and charity of heroic lawmakers.

There is nevertheless something to learn from the conflicts over suffrage in that era. As Frederick Douglass wrote in this magazine in 1866, “The true way and the easiest way is to make our government entirely consistent with itself, and give to every loyal citizen the elective franchise,—a right and power which will be ever present, and will form a wall of fire for his protection.” The right to vote, and the ability of voters to register popular dissent at the ballot box, is what separates democratic systems from authoritarian ones. The ballot is a right, but it is also a means of self-defense. Politicians need not fear or respond to an electorate that lacks the ability to deprive them of office.

If the Supreme Court upholds the independent-state-legislature theory, it will deprive the public of yet another means of defending itself. For the party that appointed the majority of the justices, that would be ideal.