After three hours of oral arguments Tuesday, three of the six conservatives on the Supreme Court appeared to be searching for a compromise in a case that, if some Republicans get their way, could allow state legislatures to burden our right to vote in federal elections with few safeguards to protect us.
State courts should be able to act as an ordinary constraint on lawmakers who violate their state constitutions.
The court heard Moore v. Harper, a North Carolina dispute over whether state courts have the power to invalidate voting district lines drawn by a state legislature if those lines violate the state’s Constitution. Some Republican lawmakers are pushing a theory called the independent state legislature doctrine. Based on a warped reading of the U.S. Constitution, the doctrine asserts that the responsibility of deciding the “time, place, and manner” of federal elections and how to appoint electors to the Electoral College (except in limited circumstances) belongs only to state lawmakers — the “legislature.”
Such a reading means “legislature” does not, in the vast majority of situations, include other members of state government. This despite the fact that we have always understood the word “legislature” to at least include other members of state government, like state courts. Under that theory, the legislature could violate its state’s constitution when making decisions about federal elections and state courts couldn’t do anything about it.
With Justices Clarence Thomas, Samuel Alito and Neil Gorsuch sounding like they’re OK with legislatures having broad power unreviewable by state courts, and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson appearing to espouse the view that, of course, lawmakers’ decisions are subject to review, it may be up to Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett to broker a compromise that says state court judges still have some role to play when reviewing state lawmakers’ decisions about elections, but they can only go so far.
Even that compromise would be bad news for those of us worried about state lawmakers’ ability to burden the right to vote. Legally and practically, state courts should be able to act as an ordinary constraint on lawmakers who violate their state constitutions.
If, however, 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. The only others who could possibly weigh in would be federal judges, and then only if an issue of federal law arose.
If state lawmakers can draw their own district lines, without any fear of being overruled by state judges and with little fear of being overruled by federal judges, then the party in control of the legislature can gerrymander itself into victory and infringe on the power of our votes. That’s what happened in North Carolina. Its Supreme Court said lawmakers drew lines so lopsided they violated the state Constitution. Those pushing the independent state legislature theory have argued that even if the state’s highest court is right, it’s not in the court’s power to invalidate a redistricting map.
If the U.S. Supreme Court accepts this argument, then that could create problems for independent redistricting commissions in states such as California and Arizona. If only state lawmakers can draw legislative district lines, then that process cannot be outsourced to an outside, independent group.
As for voting for president, the Constitution gives state lawmakers power to choose electors, and lawmakers in every state have given that power to the voters. There would be enormous public pressure to stop state lawmakers from taking that power for themselves, but little legally to prevent them from doing so. Even as the law stands now, state lawmakers can choose their state’s electors after Election Day if they decide voters “failed” to make a decision on Election Day. The practical consequences here are immense. Federal courts do have a role to play in certain election law disputes, but it is increasingly limited, particularly with respect to both partisan and racial gerrymandering. Back in 2019, the Supreme Court ruled that federal courts have no role in deciding whether voters’ rights have been violated based on partisan gerrymandering. But don’t worry, the court said, because state courts can. Of course, justices may now tell us that state courts cannot intervene in disputes regarding federal elections. And while federal judges can weigh in on claims based on racial gerrymandering, it also seems likely that in this term, a majority of justices will further limit the ability of minority voters to lodge successful claims under the Voting Rights Act. This court takes with one hand and takes some more with the other. As for Moore v. Harper and the independent state legislature theory, as Kagan noted during oral arguments, the practical consequences here are immense, as a broad reading of this theory could get rid of our normal checks and balances. This case comes at a time when, as she said, we most need a check on our lawmakers. Lawmakers are motivated to win elections and, as a result, can sometimes make laws that diminish our political power. Kagan is right. And her worry about giving lawmakers that much power should worry all of us who care about democracy.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
