The U.S. Supreme Court Decision Against Moore v. Harper: Inconsistency in State Legislature Theory on the Constitution and the Prospect for Democrats to Rule the 2020 Election

While the court’s majority found state legislatures’ authority over congressional elections is not exempt “from the ordinary constraints imposed by state law,” including review by state courts, the justices also issued a warning about a limit to what state courts can do.

In a practical sense, Tuesday’s U.S. Supreme Court decision will not make a difference in North Carolina, where Republicans retook control of the state Supreme Court after the 2022 election and the new GOP majority has since reversed a prior court’s ruling that redrawn congressional maps violated the state constitution with an extreme partisan gerrymander. The map will likely return in some form for the 2024 elections with little likelihood that it will change for the rest of the decade.

According to the Pennsylvania G.O.P., the Constitution gives state legislatures broad, independent powers to regulate elections for president and Congress. There is an argument in each of the two articles of the Constitution. The legislature in each state has the power to prescribe the times, places and manner of holding elections for senators and representatives. And Article II’s Electors Clause says, “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress.”

Democrats as well as experts on election law on the left and right joined with the Conference of State Chief Justices in opposing the independent state legislature theory on the Supreme Court.

As the justices considered this theory in the lawsuit known as Moore v. Harper, many legal scholars warned that the court’s endorsement of it could threaten to upend the country’s decentralized election system, which is mainly run by state and local officials.

First, a bit of background. The effort to steal the 2020 election depended on two key arguments. The first theory was that the election was fundamentally flawed and the second was that the Constitution could be used to allow Donald Trump to take office.

Whether the U.S. Supreme Court is going to step back in overstepping the boundaries of the independent state legislature theory: The Case of Ohio Redistricting Commission 2020 Census

Republican state lawmakers, however, have refused to follow the state court’s order to draw a new map and appealed that ruling to the U.S. Supreme Court, arguing that the state court overstepped into congressional redistricting duties that, according to the independent state legislature theory, are reserved for state lawmakers.

As part of Ohio’s drawn-out redistricting process for the 15 seats in the U.S. House of Representatives the state was allocated after the 2020 census, the Ohio Redistricting Commission — made up of politicians — ultimately adopted a map in March 2022 that Ohio’s state Supreme Court later found “unduly favors” the Republican Party while disfavoring the Democratic Party.

There is a possibility that the first case of its kind will be a lawsuit on the new congressional map in Wisconsin, says Torchinsky. “Then, out of the 2024 elections, I think there’s a decent chance somebody goes to a state court and asks them to do something off the rails that could get presented to the U.S. Supreme Court.”

“It means that there are more cases coming, it’s what it means” said an attorney who wrote briefs on behalf of the Republican National Committee.

Torchinsky thinks the US Supreme court has adopted a narrow version of the independent state legislature theory, which it is waiting to be tested with more lawsuits.

Amar added the majority’s opinion shows signs that the court doesn’t have a “great appetite” for supervising how state courts oversee federal elections.

“This is a court that doesn’t want to give up control over things,” Vikram Amar, the dean of the University of Illinois College of Law who filed a friend-of-the-court brief opposing the theory, said about the high court Tuesday during a press briefing organized by the Brennan Center for Justice at New York University School of Law. “If the state courts go wrong, they’d be given authority to step back in.”

And that could invite requests for the U.S. Supreme Court to review whether a state court’s ruling in a case about congressional elections may have gone too far.

Chief Justice John Roberts wrote that state courts may not exceed the bounds of ordinary judicial review to unconstitutionally intrude upon the role reserved to state Legislatures by the Federal Constitution.

“Constitutional checks and balances dodged a bullet,” Shapiro says about the impact of the U.S. Supreme Court’s ruling. Overall, democracy dodged a bullet.

The separation of power at the state level has been preserved thanks to the court’s repudiations of the most extreme form of the theory.

Instead, election workers can now move forward with more certainty that they’re carrying out their state’s election system with the same rules and processes for all levels of races.

The theory’s origins are clear, but a friend of the court brief against it was written by a professor at the Chicago-Kent College of Law. There would have been chaos.

A major U.S. Supreme Court ruling that does not reject the most extreme version of a once fringe legal theory has alleviated the anxiety of many election watchers.