Under the theory advanced by North Carolina’s Republican legislative leaders, but rejected by the court, state lawmakers throughout the country would have had exclusive authority to structure federal elections, subject only to intervention by Congress.
The “independent state legislature theory” holds that the U.S. Constitution gives that power to lawmakers even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions.
But Roberts wrote that was wrong, within limits.
“Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein,” he wrote. State courts “may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
Roberts’s opinion was joined by Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson.
Justice Clarence Thomas said the case had become moot because of subsequent action by the North Carolina Supreme Court, and the court should have dismissed the case. But, joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch, he also disagreed with Roberts’s reasoning.
If the ruling had gone the other way, the case could have had a major influence on results in the 2024 election. It has drawn attention in part because of the nation’s polarized politics, in which former president Donald Trump and his allies are still advocating to overturn the 2020 election, and the midterms showed that control of Congress can depend on the drawing of congressional district lines.
“In its most extreme form, the Independent State Legislature Theory could have weakened the foundation of our democracy, removing a crucial check on state legislatures and making it easier for rogue legislators to enact policies that suppress voters and subvert elections without adequate oversight from state courts,” Abha Khanna, a lawyer who represented plaintiffs, said in a statement. “We are incredibly relieved that the Supreme Court decisively rejected this dangerous theory.”
The theory comes from a strict reading of the Constitution’s elections clause, which says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”
Proponents of the theory argue that the use of the term “legislature” means that only lawmakers may set election rules and draw congressional maps, and that governors, election administrators and even state courts enforcing state constitutions have no role to play. According to that argument, only Congress could step in to overrule the state legislators.
At oral arguments in the case in December, the three most conservative justices — Thomas, Alito and Gorsuch — appeared open to such a reading of the text. The three liberals — Sotomayor, Kagan and Jackson — were adamantly opposed. Roberts, Kavanaugh and Barrett seemed to think state lawmakers deserved the predominant role, but there still was room for judicial oversight.
The case is Moore v. Harper.
This is a developing story. It will be updated.
