Supreme Court Rejects Sweeping Legislative Theory, But Leaves Room for Election Challenges in 2024

In a significant ruling, the U.S. Supreme Court dismissed a controversial legal theory that had the potential to reshape election procedures nationwide. However, the court left open the possibility for more limited challenges that could heighten its involvement in resolving voting disputes during the upcoming 2024 presidential election.

With a 6-3 majority, the court definitively rejected the most extreme version of the “independent state legislature theory.” This theory asserts that state legislatures possess absolute authority in establishing the rules for federal elections, immune from scrutiny by state courts. The decision brought relief to voting rights groups, who viewed it as a significant victory.

Kathay Feng of Common Cause, whose lawsuit challenging North Carolina’s Republican-drawn congressional districts sparked the case, expressed satisfaction: “Today, we have successfully defeated the gravest legal threat our democracy has ever faced.”

However, for some skeptics of the theory, the concern is not entirely alleviated.

While the court emphasized that state courts must still adhere to the “ordinary bounds” when reviewing laws pertaining to federal elections, this ruling grants an additional avenue for those who lose election lawsuits in state courts. They can now attempt to persuade federal judges to overturn such rulings using the newly established framework. Critics cautioned that this may open the door to ideological and partisan influences in the judicial process.

Law professor Rick Hasen from the University of California Los Angeles, who filed a supporting brief urging the court to reject the theory outright, commented, “While they have rejected many extreme elements, there remains ample room for ideological and partisan interpretation to come into play.”

Conservatives who advocated for limiting the role of state courts in federal elections concurred with Hasen, asserting that the court failed to definitively settle the question of when state courts should abstain from interfering in federal elections. They warned that the issue might only be resolved through last-minute challenges during the presidential election in 2024.

Jason Torchinsky, a Republican attorney who submitted a supporting brief urging the court to adopt a more restricted version of the theory, lamented, “Unfortunately, it may only be in 2024 when this issue appears on the emergency docket.”

In the coming days, the high court will determine whether to hear another case that touches on similar concerns. The case involves an appeal by Ohio Republican lawmakers against two state supreme court rulings instructing them to draw fair congressional maps. Similar scenarios could arise in other states, such as Wisconsin, where Democrats hope that a new liberal majority on the state supreme court will reverse what they perceive as Republican gerrymandering.

The “independent state legislature theory” originates from the clause in the U.S. Constitution that stipulates state legislatures have the authority to establish the “time, place, and manner” of elections for the U.S. Senate and House of Representatives. Advocates argue that this clause indicates the founders intended to grant legislatures ultimate power in federal elections. The theory gained traction among conservatives as they gained more influence in state legislatures.

During the 2020 election, the Trump campaign sought the Supreme Court’s intervention to overturn a Pennsylvania Supreme Court ruling allowing the counting of mail-in ballots received after Election Day. Many anticipated that the case would revolve around this theory. However, the high court merely ordered the segregation of the late mail-in ballots during the vote count. As the number of such ballots was insufficient to alter the outcome, no further action was taken. Ultimately, Joe Biden won Pennsylvania by a margin of just over 80,000 votes.

In its most extreme application, some advisors to then-President Trump in late 2020 proposed using the theory to empower state legislatures to replace electors won by Biden with electors favoring Trump. Their argument rested on the assertion that any changes to voting procedures that year were invalid unless approved by legislatures, which should have the power to determine presidential race winners.

North Carolina’s Republican-controlled legislature contended last year that the theory prevented its state supreme court from overturning a district map that unfairly allocated a disproportionate number of the state’s 14 congressional districts to 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 flawed. Roberts emphasized that legislatures, when enacting laws, must adhere to the provisions of the very documents that give them authority.

Many advocates for democracy regard this aspect of the ruling as the most crucial and believe it will deter most challenges to state court decisions in the future. Cameron Kistler, a legal counsel at the nonprofit organization Protect Democracy, expressed confidence, saying, “While cases may still arise, I believe they are likely to lose overwhelmingly unless something highly unusual occurs. The Supreme Court is poised to establish a firm boundary here because they don’t want every election law decision by state officials or state courts to become a federal matter.”

Neal Katyal, a former acting solicitor general who argued the case on behalf of voting rights groups before the Supreme Court, interpreted the ruling as “a clear signal that this United States Supreme Court, backed by a strong majority of six justices, will resist attempts by state legislatures to undermine the integrity of the 2024 election.”

Justice Clarence Thomas, a conservative, dissented alongside Justice Neil Gorsuch, expressing concern that a mere signal is insufficient. Thomas lamented the majority’s failure to explicitly outline the circumstances under which state courts would overstep their boundaries, even though, in most cases, they would not.

“There are bound to be exceptions,” Thomas wrote. “They will arise unpredictably amidst rapidly evolving, politically charged controversies, potentially resulting in federal courts expediting their judgments to determine the victors of federal elections.”

This possibility troubled some election lawyers.

Rick Pildes, a law professor at NYU, voiced his concerns, stating, “It is crucial that the rules for elections are clear and established in advance, including the rules derived from judicial doctrine. We should anticipate ongoing litigation surrounding this issue during the 2024 elections until courts provide a clearer understanding of the limits on state court decision-making.”

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

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More about election challenges

• U.S. Supreme Court Rejects Sweeping Legislative Theory
• Understanding the Independent State Legislature Theory
• Implications of the Supreme Court Ruling for the 2024 Election
• Debate Surrounding the Independent State Legislature Theory
• Notable Cases and Controversies Related to the Theory