The U.S. Supreme Court in the past few weeks has massively changed American society with a wave of opinions that, among other things, ended five decades of federal protections for abortion rights, curbed gun restrictions and curtailed the federal government’s regulatory powers.
The court’s decisions this term demonstrate, more clearly than ever, the real-world consequences of former President Donald Trump’s influence in cementing a conservative supermajority on the Supreme Court.
And the Trump-shaped supermajority on the court is just getting started.
Next term, he has the opportunity to blow up over 100 years of election jurisprudence by adopting a radical legal theory that would concentrate power over elections in increasingly polarized and fraudulent state legislatures. (Gerrymandering is the drawing of legislative district lines to favor one political party over another.)
The court announced Thursday that next term it will hear Moore v. Harper, in which North Carolina’s Republican state lawmakers are asking the court to overturn a North Carolina Supreme Court decision striking down congressional maps of the legislature because they were unfairly biased in favor of the Republicans and ordering a map drawn by outside special masters to be used for the 2022 elections.
“We all know that both sides cheat when they can, and the courts have stood up this year in a way they haven’t before,” Michael Waldman, president of the Brennan Center for Justice, told reporters Thursday. “That would cut this off at the knees.”
State legislatures wielding unlimited power could be checkmated for 2024
North Carolina state election district map. Jerry Broome/AP
North Carolina House Speaker Tim Moore is petitioning the court to overturn the state Supreme Court’s ruling under a once-obscure legal concept that entered the mainstream in 2020 known as the independent state legislature doctrine, or theory.
The Elections Clause in Article I of the Constitution states that “the time, place, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature of the State concerned.” The ISL theory argues that the clause gives only state legislatures and no other bodies—such as courts, executive officers, or election officials—jurisdiction over redistricting and election laws.
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch expressed their willingness to seriously consider the argument behind the theory in the 2020 election and North Carolina redistricting cases that reached the court through the emergency appeals, or “cut-case” process.
The Supreme Court’s adoption of the theory would have far-reaching implications beyond redistricting, upending nearly every aspect of how American elections are conducted.
This could impede the ability of state courts to rule on any election laws, of governors to issue executive orders regarding election laws, and of election officials to interpret election rules and issue regulations, as many of these bodies did during COVID-19 pandemic.
In a worst-case scenario, it could even enable the legislature to interfere or subvert presidential elections.
“It’s entirely possible that the courts will have the votes to uphold a theory that would give state lawmakers unlimited control over election administration, which would be a checkmate for the 2024 election,” Gabby Goldstein, co-founder of Sister District, a progressive group that focuses on state legislatures, told Insider, citing existing GOP majorities in states like Georgia, Pennsylvania and Wisconsin.
Indeed, Trump himself and his allies have relied heavily on the theory in their aggressive bid to overturn the 2020 election, arguing that courts and governors overturning or shaping election laws are grounds to void the election results of entire states within states. who voted for President Joe Biden.
But legal experts say the idea directly contradicts the express intent of the Constitution’s architects, particularly James Madison, to limit state legislatures’ unchecked power over elections with the Elections Clause.
“He said that any time state legislatures have a preferred enforcement measure, they’re going to take care to shape the provisions to benefit the candidates who want to succeed,” Waldman said, referring to Madison. “We couldn’t have said it better. We think this is a dangerous concept. And it would wreak havoc on our election laws.”
He added: “It will be an extraordinary power grab by political actors if supported.”
“ISL is as contrived as all I know of in constitutional law”
A voter at a polling booth to vote on June 7, 2022 in Jackson, Mississippi. AP Photo/Rogelio V. Solis, file
Helen White, counsel for Protect Democracy, told reporters that the strict and narrow reading of “legislative power” proposed by proponents of the theory “is not at all supported by the text of the Constitution, the original understanding of the Constitution, 200 years of electoral practice here and the Supreme Court’s own precedent in 2019.”
Over the past decade, the court rejected ISL’s argument in rejecting the Arizona Independent Redistricting Commission’s challenge in 2015 and ruled in Rucho v. Common Cause in 2019 that partisan gerrymandering cases are non-justiciable political issues barred from federal courts and must be resolved by state courts.
But a court siding with North Carolina would also take away the ability of state courts to serve as a check against partisan manipulation of their elected representative bodies.
“The court would look so bad if it embraced ISL after throwing Roe under the bus for being made up,” said Vikram Amar, dean and Iwan Foundation Professor of Law at the University of Illinois. “ISL is as contrived as anything I know of in constitutional law. ISL is not only inconsistent with the deep premise of federalism, it is exactly backwards.”
Waldman also argued that acceptance of the theory would not only “sow chaos” but be an “extraordinary rebuke” to the court conservatives’ stated commitment to originalism.
“To say that because the word ‘legislature’ appears in a provision designed to limit legislative power, that means the legislature has all the power is Amelia Bedelia, not legal theory,” Waldman said. “This is stupid. This is a deliberate, comical misinterpretation of the text, structure, history, purpose, meaning, and purposes of the constitutional provision. And it’s as clear as any case they’ll hear next year.”
Helen White said that the theory of the legislature of the independent state is best described not as a single theory, but as encompassing many possible lines of argument. The Arizona case that the Supreme Court ruled on in 2015, for example, challenged the creation of a direct ballot initiative redistricting commission because it improperly froze the legislature.
Because of this complexity, she argued, a court accepting some version of the theory would not necessarily give state legislatures a “license to stage a coup” in 2024, as some have suggested, but could be “potentially extremely damaging to the election” and “causing a lot of chaos.”
Court can translate ‘fever dream into law’
A poll worker places “I Voted” stickers at a polling place on June 14, 2022 in Las Vegas. John Locher/AP
Thomas Wolfe, deputy director of the Brennan Center’s democracy program, noted that it only takes four justices to agree to hear a case, but five to rule, saying, “The fight is not over.”
Amar said the shadow case, where three conservative justices have expressed openness to ISL, does not provide the same level of rigor and scrutiny as a case heard on the merits, which includes oral arguments, legal briefs and “the glare of public scrutiny.”
“It’s much easier to shoot your mouth off in agreement or disagreement,” he argued. “It’s going to be really hard if anyone sits down and tries to write an opinion piece accepting ISL.”
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