The Supreme Court on Tuesday rejected the “independent state legislature” theory — a GOP-backed effort to radically change federal election rules. Chief Justice John Roberts authored the 6-3 opinion.
Heading into this Supreme Court term, which started in October, voting rights proponents feared Moore v. Harper. North Carolina Republicans brought the case after the state’s Supreme Court struck down their partisan gerrymandered congressional map. They cited the fringe “independent state legislature” theory, which, in its most extreme form, claims the Constitution’s elections clause gives state legislatures unfettered control over federal elections.
But the U.S. Supreme Court disagreed. The elections clause “does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote, over dissent from Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.
As MSNBC columnist Jessica Levinson explained in December:
If … the Supreme Court accepts the broadest version of the independent state legislature theory, then state lawmakers will, with few exceptions, have exclusive power to make decisions about federal elections. Those decisions might involve whether there’s early voting, how many polling places there are and where, if voting by mail is allowed and even if the people’s vote for president should be accepted.
But oral arguments in the case earlier this term suggested that even a majority of this court wasn’t jumping to accept the most extreme version of the theory. Events since the arguments, however, raised the prospect of the case going away before it could be decided. That’s because North Carolina’s Supreme Court, with a new Republican majority hungry to reverse pro-democratic precedents, condoned partisan gerrymandering in an April ruling related to the pending U.S. Supreme Court appeal. Given the intervening developments in North Carolina, the U.S. Supreme Court raised the prospect that the case could be moot and asked the parties to weigh in on its fate. Yet the court said the case wasn’t moot and decided it, over dissent from the GOP trio. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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