Supreme Court Rejects Radical Legislative Theory, Leaving Room for Potential Election Challenges in 2024

In a decisive ruling, the U.S. Supreme Court dismissed a controversial legal theory that had the potential to reshape election procedures nationwide. However, the court left a window open for more limited challenges, potentially increasing its involvement in settling voting disputes during the upcoming 2024 presidential election.

The court’s 6-3 decision on Tuesday dealt a significant blow to the extreme version of the independent state legislature theory. This theory asserts that state legislatures hold absolute authority in establishing federal election rules and should not be subject to review by state courts. The ruling was a victory for voting rights groups, who had raised concerns about the implications of this theory.

Kathay Feng from Common Cause, whose lawsuit against North Carolina’s Republican-controlled legislature triggered the case, expressed relief, stating, “Today, we have successfully defeated the most significant legal threat our democracy has ever faced.”

However, critics of the theory remain wary, as the danger has not been completely eliminated. The court emphasized that state courts must still adhere to “ordinary bounds” when examining laws governing federal elections. This provision provides another avenue for those dissatisfied with election rulings in state courts to seek federal intervention.

Law professor Rick Hasen from the University of California Los Angeles, who filed an amicus brief urging the court to reject the theory entirely, noted that while the court rejected the extreme aspects of the theory, there remains room for ideological and partisan influences. Hasen warned that this issue might only be resolved in a last-minute challenge during the 2024 presidential election.

Jason Torchinsky, a Republican attorney who advocated for limiting the role of state courts in federal elections, concurred, stating, “Unfortunately, we may have to wait until 2024 for the matter to reach the emergency docket.”

The Supreme Court will soon consider another case related to similar issues: an appeal by Ohio Republican lawmakers regarding state supreme court rulings directing them to draw fair congressional maps. The matter could arise in other cases where state supreme courts overturn congressional maps, such as in Wisconsin, where Democrats hope the new liberal majority on the state supreme court will rectify what they consider a Republican gerrymander.

The independent state legislature theory is based on a clause in the U.S. Constitution, which grants state legislatures the authority to determine the “time, place, and manner” of elections for the U.S. Senate and House of Representatives. Advocates argue that this clause demonstrates the founders’ intent to grant legislatures ultimate power in federal elections. As Republicans have gained more influence in state legislatures, support for the theory has grown among conservatives.

The theory received a passing mention in the landmark 2000 case Bush v. Gore, when conservative Chief Justice William Rehnquist hinted at limitations on the Florida Supreme Court’s ability to decide the state’s presidential electors based on that clause.

In 2020, the Trump campaign sought to overturn a Pennsylvania Supreme Court ruling that permitted the counting of mail-in ballots received after Election Day. While many expected the case to hinge on the independent state legislature theory, the Supreme Court simply ordered the segregation of the late mail ballots during the vote count. As the number of such ballots was insufficient to change the outcome, the court took no further action. Joe Biden won Pennsylvania by a margin of just over 80,000 votes.

In its most extreme form, some legal advisors to the Trump campaign in late 2020 proposed using the theory to allow state legislatures to replace Biden’s electors with those supporting Trump. They argued that any modifications to voting procedures that year were illegitimate unless approved by legislatures, which should have the authority to determine the winner of presidential races.

North Carolina’s GOP-controlled legislature argued last year that the theory prevented the state supreme court from overturning their congressional district map, 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 inaccurate. Roberts asserted that legislatures must adhere to the provisions of the documents that grant them authority when enacting laws.

Many democracy advocates believe this aspect of the ruling is crucial and will limit future challenges to state court decisions. Cameron Kistler from the nonprofit group Protect Democracy expressed confidence, stating, “Although there may be some cases, the majority of them are likely to be unsuccessful, unless some extraordinary circumstances arise. The Supreme Court will likely draw a clear line here because they do not want every election law determination to become a federal issue.”

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

However, conservative Justice Clarence Thomas, along with Justice Neil Gorsuch, dissented in the case, cautioning that a signal alone is insufficient. Thomas lamented the majority’s failure to explicitly outline the circumstances in which a state court would overstep its bounds, even though, in most cases, state courts would not. He wrote, “Exceptions are bound to arise unpredictably amidst rapidly evolving, politically charged controversies, and federal court judgments may determine the winners of federal elections.”

Some election lawyers expressed concerns about this possibility. Rick Pildes, a law professor at NYU, highlighted the importance of clear and predetermined election rules, including those that derive from judicial doctrine. Pildes warned that until courts provide a clearer understanding of the limits on state court decision-making, constant litigation on this issue during the 2024 elections should be expected.

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 Novel Legislative Theory
• Bush v. Gore Case
• U.S. Constitution
• Moore v. Harper Case
• Ohio Republican Lawmakers Appeal