Supreme Court Rejects Far-reaching Legislative Theory, Leaves Room for Future Election Challenges

In a recent ruling, the U.S. Supreme Court struck down a controversial legal theory that had the potential to alter the way elections are conducted nationwide. However, the Court did leave the door open for narrower challenges that could enhance its role in resolving voting disputes during the upcoming 2024 presidential election.

By a 6-3 majority, the Court decisively put an end to the most extreme version of the so-called independent state legislature theory. This theory asserted that state legislatures possess absolute authority in establishing the regulations for federal elections and should not be subject to review by state courts. The Court’s decision was met with approval from voting rights groups.

Kathay Feng, representing Common Cause, celebrated the ruling as a triumph for democracy, stating, “Today, we successfully repelled the most significant legal threat our democracy has ever faced.” Feng’s organization had initiated the case by challenging the congressional districts drawn by North Carolina’s Republican-controlled legislature.

Nonetheless, critics of the theory remain concerned about potential future implications. While the Court concluded that state courts must still operate within “ordinary bounds” when assessing laws governing federal elections, this ruling presents another avenue for individuals who lose election-related lawsuits in state courts. They can now endeavor to convince federal judges to overturn those decisions.

Rick Hasen, a law professor at the University of California Los Angeles who filed a brief supporting the rejection of the theory, cautioned that while the Court rejected many extreme aspects, there is still ample room for ideological and partisan influence. He asserted, “They have dismissed a considerable portion of the extreme elements, but there remains the potential for ideological and partisan judgments to come into play.”

Conservatives who advocated for limitations on the involvement of state courts in federal elections echoed Hasen’s sentiment. They believe the Court has not yet definitively determined the circumstances in which state courts must refrain from interfering in federal elections. They cautioned that this issue may only be resolved through a last-minute challenge during the presidential election in 2024.

Jason Torchinsky, a Republican attorney who supported a more restricted interpretation of the theory, expressed disappointment, stating, “Unfortunately, we will likely see this issue on the emergency docket in 2024.”

This week, the Supreme Court will also decide whether to hear another case related to similar issues. Ohio Republican lawmakers have appealed a pair of state supreme court rulings instructing them to draw impartial congressional maps. This matter could arise in other cases where a state supreme court overturns congressional maps, such as in Wisconsin, where Democrats hope a new liberal majority on the state supreme court will rectify what they perceive as Republican gerrymandering.

The independent state legislature theory derives from a clause in the U.S. Constitution mandating that state legislatures determine the “time, place, and manner” of elections for the U.S. Senate and House of Representatives. Advocates argue that this demonstrates the Founding Fathers’ intention to grant state legislatures ultimate authority in federal elections.

The theory gained attention when Chief Justice William Rehnquist alluded to it in the landmark 2000 case Bush v. Gore. He suggested that the clause imposed restrictions on the Florida Supreme Court’s ability to determine the winner of the state’s presidential electors.

As Republicans gained increased influence in state legislatures, the theory gained popularity on the right.

During the 2020 election, the Trump campaign sought to overturn a Pennsylvania Supreme Court ruling that allowed the counting of mail-in ballots received after Election Day. Many anticipated that this case would hinge on the independent state legislature theory. However, the Supreme Court merely ordered the segregation of late-arriving mail ballots during the vote count. When it became evident that these ballots would not alter the outcome, the Court took no further action. Ultimately, Joe Biden won Pennsylvania by a margin of approximately 80,000 votes.

In its most extreme form, some legal advisors to Donald Trump in late 2020 advocated for utilizing the theory to enable state legislatures to replace Biden-won electors with those favoring Trump. They contended that any changes to voting procedures that occurred that year were invalid unless approved by legislatures. They asserted that legislatures should possess the authority to declare the winner of presidential races.

North Carolina’s Republican-controlled legislature maintained last year that the theory prevented its state supreme court from overturning the district map it had drawn, which disproportionately favored Republicans. However, Chief Justice John Roberts, writing for the majority in the case known as Moore v. Harper, dismissed this argument as historically and legally incorrect. Roberts declared, “When legislatures create laws, they are constrained by the provisions of the very documents that give them existence.”

Many advocates for democracy consider this aspect of the ruling to be the most significant and believe it will discourage the majority of challenges to state court decisions in the future.

Cameron Kistler, legal counsel at the nonprofit group Protect Democracy, anticipates that although cases will arise, they are highly likely to lose unless extraordinary circumstances occur. Kistler remarked, “I believe the Supreme Court will seek to establish a clear boundary here because the last thing they desire is for every election law determination by state officials and state courts to become a federal issue.”

Neal Katyal, a former acting solicitor general who presented the case for voting rights groups at the Supreme Court, interpreted the ruling as “a signal that this United States Supreme Court, with a solid six justices behind it, will resist attempts by state legislatures to tamper with the integrity of the 2024 election.”

Justice Clarence Thomas, joined by Justice Neil Gorsuch in dissent, cautioned that a mere signal is insufficient. Thomas lamented the majority’s refusal to explicitly delineate the circumstances in which a state court might overstep its bounds, even though, in most cases, state courts would not do so.

Thomas wrote, “Exceptions are bound to arise haphazardly in rapidly evolving, politically charged controversies, and federal court judgments may ultimately determine the victors of federal elections.”

Concerns about this possibility trouble certain election lawyers.

Rick Pildes, a law professor at NYU, emphasized the importance of establishing clear and predetermined rules for elections, including rules derived from judicial doctrine. Pildes wrote, “We can expect constant litigation on this issue during the 2024 elections until courts provide a more explicit understanding of the limits on state court decision-making.”

Julie Carr Smyth, a writer for Big Big News in Columbus, Ohio, contributed to this report.

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More about election challenges

• Supreme Court Rejects Independent State Legislature Theory
• Understanding the Impact of the Supreme Court Ruling on Election Challenges
• Analysis of the Supreme Court’s Decision on Voting Disputes
• Exploring the Role of State Courts in Federal Elections
• Implications of the Supreme Court Ruling for the 2024 Presidential Election