The Court Is Likely to Reject the Independent State Legislature Theory
And that offers hope for American democracy
It is often difficult, if not impossible, to tell what the Supreme Court is thinking about a case from the questions the justices ask counsel. But the argument in Moore v. Harper, heard by the Court in early December, was different. By the end, it was clear the Supreme Court has no appetite for the independent state legislature theory—and that offers hope for the future of America’s democracy.
The theory—that state legislatures have the unreviewable power to set the rules of their state’s federal elections—is a dangerous one. The case began when the North Carolina legislature redrew the congressional-districts map that would apply in federal congressional elections and the North Carolina Supreme Court invalidated that map under the state constitution. The state legislators appealed that decision to the U.S. Supreme Court, claiming, under the independent state legislature theory, that the legislature has exclusive power to regulate federal congressional elections, without oversight from the state supreme court under the state’s constitution.
If the U.S. Supreme Court were to adopt this theory, it would foreclose state-supreme-court review of congressional-redistricting maps and other federal-election regulations enacted by the state legislatures, causing mayhem in the state-administered federal elections. Before the argument in Moore, I wrote in The Atlantic that the independent state legislature theory has literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding. And it is antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution. This was painfully evident for the proponents of the theory during the three-hour argument before the justices.
The Court seems poised to reject the misnamed independent state legislature theory and hold that redistricting maps are reviewable by the state courts for compliance with their state constitutions, as they have been since the nation’s founding. If the Court attempts to constrain the state supreme courts at all, which it ought not, it will do so by setting a standard of review for those courts to follow when reviewing state election laws. That standard will almost certainly be highly permissive of the state supreme courts, in recognition of the Court’s exceedingly limited role in reviewing state-supreme-court interpretations of their constitutions in the context of elections-clause challenges to state-enacted federal-elections laws.
(A small chance exists that the Supreme Court will not rule in the case at all, because the North Carolina Supreme Court’s grant of rehearing in Moore v. Harper could deprive the U.S. Supreme Court of “final judgment” jurisdiction or eventually could cause the Court to declare the case moot. Presumably worried by the oral argument at the Court in December, the North Carolina legislators have asked the newly reconstituted North Carolina Supreme Court to overrule its own decision in Moore. The state supreme court that originally decided Moore was 4–3 Democrat, but the Republicans picked up two seats in the state election last November and now have a 5–2 majority. In response to the state supreme court’s grant of rehearing, the U.S. Supreme Court asked the parties to brief whether there is still a “final judgment” for the Supreme Court to review. There is, and both the petitioners and respondents have so advised the Supreme Court, so the Court seems more than likely to still rule.)
In advance of the oral argument, the extensive briefing by the parties and the 60 amici curiae was exceptional, and the justices arrived well prepared. The lawyers for the parties were four of the most respected Supreme Court lawyers of this generation. Two were former solicitors general of the United States—Don Verrilli, who argued for the State of North Carolina respondents, and Neal Katyal, who argued for the non-state respondent Common Cause. The third lawyer, Elizabeth Prelogar, is the current solicitor general of the United States, who argued in support of the respondents. The fourth lawyer, David Thompson, who argued for the petitioners, North Carolina state legislators, is a highly respected appellate attorney well known to the Court. The arguments of all four counsel were excellent. Katyal’s performance was virtuosic, as if a great maestro were conducting the world’s finest symphony orchestra.
I was co-counsel for the respondent Common Cause, though I neither argued the case nor was seated at counsel’s table. I watched the argument from my seat in the relatively few rows in the courtroom reserved for the public—the best vantage point in the chamber. I was there because of my interest in the so-called independent state legislature theory, which I testified to the January 6 Select Committee was the centerpiece of the effort to overturn the 2020 presidential election by the former president, and because, as I have explained publicly, Moore v. Harper is the single most important case for American democracy since the founding of the nation.
The extraordinarily long argument in this landmark case for our democracy was bound to be illuminating‚ and it was.
From the moment David Thompson stepped to the lectern, he received a withering fusillade of skeptical questions from the justices about each of his arguments, as well as about the sweeping implications of the independent state legislature theory for America’s democracy. The questioning of Thompson was initially led by Chief Justice John Roberts and the Court’s three liberals—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. But Justices Clarence Thomas, Amy Coney Barrett, and Brett Kavanaugh soon joined in with their own piercing questions, and these seven were eventually joined by Justices Samuel Alito and Neil Gorsuch, thought to be the Court’s members most sympathetic to the theory.
Kagan seemed to reject the independent state legislature theory out of hand, explaining that under the theory “legislators could enact all manner of restrictions on voting [and] get rid of all kinds of voter protections that the state constitution in fact prohibits … In all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country.” In an evident reference to the 2020 presidential election and its aftermath, she added, “You might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”
Thompson responded to Kagan that the checks and balances on the state legislatures “come from the federal Constitution and the panoply of federal laws like the Voting Rights Act”—urging that oversight of the state legislatures be left exclusively to the federal courts. But his response seemed unpersuasive to a Court apparently convinced that, as originally understood at the time of the Constitution’s framing, the state legislatures’ regulations of federal elections would be subject to state-supreme-court review under the state constitutions.
Jackson expressed her concern about the theory this way: “I guess what I’m a little worried about is the suggestion that when the legislature … is exercising legislative authority in this context, it does not have to adhere to any state-constitutional constraints on its power, when it’s the state constitution that gives it its power and tells us when it is appropriately acting as the legislature not just with respect to the issue of elections.” Jackson appeared to agree with respondents that because the legislatures are creatures of the state constitutions, the Framers of the Constitution would have understood and assumed that the election laws the legislatures passed would be reviewable by the state courts for compliance with the state constitutions, and if the Framers intended that those election laws would not be reviewable, they would have so provided in the Constitution or indicated as much in the constitutional debates at the time of the framing.
Even Thomas, Alito, and Kavanaugh, each of whom previously expressed interest in the much less extreme formulation of the independent state legislature theory articulated by then–Chief Justice William Rehnquist in Bush v. Gore, appeared skeptical of the legislators’ argument that the state supreme courts are entirely foreclosed by the elections clause of the Constitution from reviewing a legislature’s redistricting plan under a state constitution.
Alito, for example, observed that it’s “inevitable” that state courts will have to interpret state election laws in at least some instances. And Kavanaugh pointed out that the North Carolina legislators’ argument that the state constitutions do not apply to the legislature’s redistricting decisions “seem[ed] to go further” than Rehnquist’s concurrence in Bush v. Gore, which acknowledged that “state courts have a role interpreting state law.”
Early in the argument, Thomas asked Thompson potentially the most significant question of the day: “What is the [Supreme Court’s] jurisdiction for this case?” Thomas elaborated that the U.S. Supreme Court does not typically review state-supreme-court interpretations of state constitutions. His question is best understood as asking whether a federal constitutional issue is ever presented by a state supreme court’s interpretation and application of its state constitution to its state legislature’s redistricting decisions and other federal election laws. Barrett later suggested in a colloquy with Verrilli that she, too, questioned whether the Court had the jurisdiction to hear Moore.
To Thomas and Barrett’s point, the Constitution doesn’t contemplate that the federal judiciary will constrain the state supreme courts in the interpretation of their own state constitutions. The Constitution’s checks on the state legislatures are either federal judicial review under the U.S. Constitution or Congress’s power under the elections clause to prescribe the rules for holding congressional elections or to alter the rules enacted by the state legislatures. Under the most plausible interpretation of the elections clause, a federal question would never be presented by a state supreme court’s interpretation of its state constitution, as I wrote previously.
Throughout the entire argument, none of the justices expressed anything approaching agreement, let alone unreserved agreement, with petitioners’ arguments for the independent state legislature theory. The Court’s reservations drew from the Constitution’s text, from history, and from the Court’s precedents, all three of which emerged as dominant lines of questioning by the justices and unmistakably point away from the dangerous independent legislature theory.
The North Carolina Republican legislators’ argument for the theory from the Constitution’s text was that the elections clause empowers the “state legislatures” to prescribe the regulations for congressional elections and that the term legislature refers only to the state’s representative legislative body, which passes the state’s laws. The North Carolina legislators argued from the fact that the elections clause empowers the representative legislative body to prescribe the regulations for congressional elections that the legislative power cannot be constrained by the state courts through the state constitutions.
Significantly, there was little discussion at argument about whether the term legislature in the elections clause means only the representative legislative body or instead means the whole of the lawmaking process, including judicial review and gubernatorial action, as the respondents contended. And only a couple of questions were related to the definition of the term legislature, both from Jackson, who read the elections clause as “not taking a position as to who the legislature is.”
The little discussion around this threshold and central argument of the parties could be explained by the fact that the Court seemed to come into the day of argument satisfied by the historical evidence that the state constitutions in fact do apply to the legislatures’ redistricting decisions, regardless of how the term legislature in the clause is understood.
The Court’s questions were highly critical of the North Carolina legislators’ historical arguments. By notable contrast, the Court was clearly more receptive to the historical arguments made by Katyal, Verrilli, and Prelogar.
The respondents’ primary argument in Moore was that the Framers wrote the elections clause against the backdrop that most state constitutions at the time did constrain their respective legislatures in the regulation of both state and federal elections, and immediately following the federal Constitution’s ratification, state constitutions continued to constrain the power of state legislatures in their prescription of the manner for holding elections. Consequently, the respondents argued, the Framers understood and assumed that the state constitutions would apply to the state legislatures’ federal-elections regulations.
Thus, Katyal argued, the independent state legislature theory is refuted by 233 years of American constitutional history, rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice, and repudiated by the Supreme Court’s precedents. To accept the theory, he told the Court, it “would have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today.”
Thompson disputed this indisputable history, contending that the early state constitutions regulated only the elections for state “offices that were created by [those] constitutions,” not federal congressional elections. At first, Justice Sotomayor tutored Thompson that “at the founding of the Constitution, decades after, and even to today, state constitutions have regulated times, places, and manner of federal elections.” When Thompson continued to recite historical evidence that he mistakenly argued supported his claim, Sotomayor eventually ended the exchange by noting, “Yes. If you rewrite history, it’s very easy” to say that history supports the independent state legislature theory.
Finally, Justice Kavanaugh tellingly asked Thompson directly, “What do we do with [the] historical practice? Nearly all state constitutions regulate federal elections in some way, and some of the early constitutions did that.” Thompson did not have a satisfying answer.
Thompson was also repeatedly asked how the independent state legislature theory could be reconciled with the Court’s precedents, in particular Smiley v. Holm, which held that a governor could veto a state legislature’s redistricting plan using a veto provided for in the state constitution, but also Arizona State Legislature v. Arizona Independent Redistricting Commission, which upheld independent redistricting commissions, and Rucho v. Common Cause, which, despite rejecting federal remedy for unconstitutional redistricting by the state legislatures, said that state judicial process is available to remedy unconstitutional gerrymandering. Although the Supreme Court has never considered the independent state legislature theory as such, the theory is in tension with these and other precedents.
As Kagan put it, “I would think that our precedent gives you a lot of problems. In all recent cases, we’ve said … state courts applying state constitutions typically constrain state legislatures when they redistrict, when they enact election laws.” Referencing Arizona State Legislature, Kagan noted that “nothing in the elections clause instructs, and this Court has never held, that a state legislature may prescribe regulations on the times, places, and manner of holding federal elections in defiance of the state’s constitution.”
Attempting to reconcile the independent legislature theory with the Supreme Court’s precedents, Thompson argued that, though a state constitution may prescribe the procedure or method by which a state legislature enacts a federal-election regulation—such as by requiring a bicameral vote or that legislation be subject to a gubernatorial veto—it may not impose substantive limits on the election laws that a state legislature enacts pursuant to its elections-clause authority. Thompson argued, “It is federal law alone that places substantive restrictions on states’ legislatures performing the tasks assigned them by the federal Constitution.”
The Court—in particular Roberts, Kagan, Sotomayor, and Barrett—appeared deeply skeptical of Thompson’s distinction between substantive limitations on the legislatures, which Thompson argued were impermissible, and procedural limitations, which, because the Supreme Court previously so held, he had to concede were permissible.
The justices also asked Thompson about Rucho, for which Chief Justice Roberts wrote the majority opinion. In Rucho, though the Court held that federal courts could not review state legislative redistricting plans, it said in nonbinding but crucial dictum that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in reviewing state redistricting plans.
When Roberts asked about Rucho, suggesting that the independent legislature theory is irreconcilable with what the Court said in that case, Thompson contended that Rucho does not contradict the independent state legislature theory, but that the North Carolina Supreme Court simply failed to employ the “manageable and discoverable standards” that Rucho requires the state courts to employ when reviewing the legislatures’ redistricting decisions under the state constitutions. Consequently, the state supreme court unconstitutionally “took legislative power” away from the North Carolina legislature—a response that itself accepted the application of Rucho’s consequential dictum.
The Court eventually turned to the standard of review, if any at all, for determining whether a state supreme court exceeds its power under the elections clause. Thompson argued that the elections clause forbids all state-court review of the legislatures’ redistricting and other federal-elections regulations. Both Katyal and Verrilli acknowledged that there could be “extreme circumstances” in which a state supreme court’s interpretation and application of its state constitution in a redistricting case could run afoul of the Constitution’s elections clause. But, they argued, given the deference federal courts are required to accord state-court interpretations of state law, the standard for determining such an instance would have to be “incredibly high,” “sky high”—with “such little legal reasoning that it can only be understood as seizing the policy-making apparatus” of the state legislature.
There was also significant discussion about how the Bush v. Gore standard for statutes would apply to state-court interpretations of state constitutions. In that case, in the context of an electors-clause challenge to a state statutory provision, Rehnquist, joined by Justices Scalia and Thomas, wrote that “a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” Katyal told Kagan that the Bush v. Gore standard was not applicable at all, because state constitutions are entitled to even greater deference from the federal courts than state statutes. Katyal explained in response to a question from Kavanaugh that a different standard is required because “state constitutions are at the apex of [the states’] sovereignty.”
Disagreeing with Katyal on whether a different standard should apply in the context of statutory review than constitutional review, Verrilli argued that the standard should be the same for both constitutional and statutory provisions. Prelogar agreed with Verrilli that the same standard should apply for both but offered that greater deference should be afforded the state courts when they are interpreting and applying a state constitutional provision, which is tantamount to saying that different standards should apply. State and federal constitutional provisions are often more broadly worded and capacious than statutes, necessitating resort to different methods and sources for interpretation, Prelogar noted, adding, “I think that federal courts should not be in the business of saying that the state courts aren’t giving [constitutional provisions] a fair reading.”
Prelogar argued that only in the rare circumstances “where the [state court] can’t properly be understood to be conducting judicial review in the first place” should the federal courts not defer to the state supreme courts’ interpretations of their state constitutions. When Sotomayor asked Prelogar, “At what point has a court acted not as in judicial review, but rather as in legislating?” Prelogar responded, “We think the closest analogue to try to track this problem I’ve described—of when a [state] court is not faithfully engaged in judicial review—is to borrow from the adequate and independent-state-grounds context and specifically the civil-rights cases, where the Court has said that if the state-court decision is so lacking in any basis, and has no fair or substantial support, and can only be understood as an effort to frustrate federal rights, then the Court can look past that [state-court] decision.”
When Roberts asked Thompson about a possible standard that could serve as a narrower basis for deciding the case than what his side was arguing for, Thompson replied that, if the state constitutional provision were sufficiently specific, in contrast to a broadly worded and open-ended provision like North Carolina’s free-elections clause, such a specific provision would be permissible under the U.S. Constitution, a reply that undermined his twin arguments that state constitutions should never be allowed to constrain state legislatures, and certainly not substantively. To Thompson’s credit, he was prepared to follow his own argument to its final, principled end, acknowledging to the Court that a state constitutional ban on partisan gerrymandering would be an example of a permissible provision under the U.S. Constitution and allowed as contemplated by the Court in Rucho.
At this, Sotomayor parried with Thompson, pointing out that many state constitutional provisions lack such specific standards and so she took Thompson’s answer “to mean that there are no judicially enforceable standards to interpret the freedom of speech, freedom of assembly, and equal protection clauses of the [U.S.] Constitution, because they, on their face, would appear to be as unmanageable or broad, and yet we routinely let federal and state courts review those acts.” She chided Thompson: “It seems that every answer you give is to get you what you want.”
Throughout the entire argument, the justices were so critical of Thompson’s historical arguments and attempted legal argument, and yet so evidently perplexed as to any appropriate standard that could constrain state supreme courts in the interpretations of their state constitutions, that I was left wondering in the end whether the Court will attempt to constrain state supreme courts at all—and that is as I would hope: The Court ought not attempt to constrain the state supreme courts in any way.
As Katyal argued, federal-court review of the state supreme courts’ decisions under the U.S. Constitution or Congress’s exercise of its power under the clause to prescribe the times, places, and manner of holding congressional elections or to alter such regulations as the state legislatures prescribe are the Constitution’s checks on state legislatures’ constitutionally conferred power to prescribe the regulations for congressional elections. The federal courts do not sit to adjudge the validity of state-supreme-court interpretations of their own state constitutions and the Constitution does not contemplate such, certainly not in the elections-clause context.
If the Court does interpret the elections clause in Moore to require circumscription of the state supreme courts’ review of their legislatures’ redistricting decisions, that circumscription ought to be exceedingly limited, given the substantial deference that the Constitution requires be accorded the state supreme courts in their interpretations of their own state constitutions.
Even so, if the Court takes that path, it will struggle (one has to believe, ultimately in vain) to fashion a constitutionally defensible standard to constrain the state supreme courts in their interpretations of their constitutions. The language of constitutions is significantly different from the language of statutes. Constitutional provisions, such as the free-elections provision in the North Carolina state constitution under which the North Carolina state supreme court held the redistricting plan unconstitutional in Moore, are purposely written in broader, more capacious and indeterminate language than statutes, in expectation of judicial interpretation. The interpretive sources the state supreme courts consult and the interpretive canons and methodologies they use to interpret their constitutions vary from state to state and constitution to constitution. The 50 state constitutions, and therefore the constitutional provisions that might apply to the state legislatures’ redistricting decisions and elections laws, vary widely in language and substance across the states and are in many cases no less capacious and indeterminate than the provisions of the U.S. Constitution that would apply were Congress to prescribe the rules for holding congressional elections and the Supreme Court to review those laws under the U.S. Constitution. As a result, it will be, as it should be, all but impossible to fashion an appropriate standard and thereafter to determine, under any standard that would be imposed by the Court, whether a state supreme court faithfully interpreted and applied the state’s constitution to a legislature’s elections-law enactments.
Regardless of any standard it might fashion, the Court appears likely to affirm the decision of the North Carolina Supreme Court in Moore. The North Carolina legislature itself legislated judicial review of its redistricting decisions by the state courts, a determinative point that the Court barely touched upon during argument. What is more, the advocate for North Carolina legislators repeatedly conceded at argument that the North Carolina Supreme Court’s decision invalidating the state legislature’s redistricting map “fairly reflect[ed] North Carolina law.” And as Justice Gorsuch stated, “nobody here thinks the North Carolina Supreme Court is exercising a legislative function.”
On that day last December, the Court itself debunked root and branch the constitutionally radical independent state legislature theory that was the centerpiece of former President Donald Trump’s effort to overturn the 2020 presidential election and that would upend federal presidential and congressional elections from the way they have been conducted for more than two centuries. I left the Court that day feeling hopeful for a nation weary from the last presidential election and worried that the next presidential election could be a repeat of it. I pray that my hope is not misplaced.