Supreme Court rejects novel legislative theory but leaves a door open for 2024 election challenges

The U.S. Supreme Court shot down a controversial legal theory that could have changed the way elections are run across the country but left the door open to more limited challenges that could increase its role in deciding voting disputes during the 2024 presidential election.

The court’s 6-3 ruling Tuesday drove a stake through the most extreme version of the so-called independent state legislature theory, which holds that legislatures have absolute power in setting the rules of federal elections and cannot be second-guessed by state courts. That decision cheered voting rights groups.

“We beat back the most serious legal threat our democracy has ever faced today,” said Kathay Feng of Common Cause, whose lawsuit challenging congressional districts drawn by North Carolina’s Republican-controlled legislature triggered the case.

But for some critics of the theory, the danger is not entirely past.

The court found that state courts still must act within “ordinary bounds” when reviewing laws governing federal elections. That gives another set of tools for those who lose election lawsuits in state courts to try to persuade federal judges to overturn those rulings.

“They’ve rejected a lot of the extreme stuff, but there is still a lot of room for ideological and partisan judging to come into play,” said Rick Hasen, a law professor at the University of California Los Angeles who filed an amicus brief in the case urging the court to reject the theory across the board.

Conservatives who had advocated for limits on the role of state courts in federal elections agreed with Hasen that the court didn’t settle the question of when, precisely, state courts need to stay out of federal elections. The issue may only get resolved in a last-minute challenge during the presidential election, they warned.

“Unfortunately, it’s going to be 2024 on the emergency docket,” said Jason Torchinsky, a Republican attorney who filed an amicus brief urging the court to adopt a more limited version of the theory.

The high court this week will decide whether to hear another case that touches on similar issues, an appeal by Ohio Republican lawmakers of a pair of state supreme court rulings directing them to draw fair congressional maps. The issue could come up in other cases where a state supreme court overturns congressional maps, such as in Wisconsin, where Democrats hope a new liberal majority on that state supreme court will reverse what they claim is a Republican gerrymander there.

The independent state legislature theory stems from the clause in the U.S. Constitution declaring that state legislatures shall set the “time, place and manner” of elections for the U.S. Senate and House of Representatives. Advocates argue that shows the founders wanted to give legislatures ultimate power in federal elections.

The theory was alluded to by conservative Chief Justice William Rehnquist in the landmark 2000 case Bush v. Gore, where he noted that that clause suggested limits on whether the Florida Supreme Court could decide who would win the state’s presidential electors.

As Republicans have gained more power in state legislatures, the theory has become more popular on the right.

In 2020, the Trump campaign asked the Supreme Court to overturn a ruling by the Pennsylvania Supreme Court allowing the tallying of mail ballots received after Election Day in a case that many thought would pivot on the theory. But the high court simply ordered the late mail ballots to be segregated during the vote count and, when they were too few in number to change the outcome, did nothing further. Joe Biden won the state by a little over 80,000 votes.

In the most extreme case, some Trump legal advisors in late 2020 wanted to use the theory to let state legislatures replace electors won by Biden with Trump-voting ones. They argued that any changes to voting procedures that year were improper if legislatures didn’t sign off on them and that legislatures should have the power to declare the winner of presidential races.

North Carolina’s GOP-controlled legislature last year argued that the theory meant its state supreme court couldn’t overturn the map it drew that awarded a disproportionate share of the state’s 14 congressional districts to Republicans. But Chief Justice John Roberts, writing for the majority in the case, known as Moore v. Harper, dismissed that argument as historically and legally inaccurate.

“When legislatures make laws,” Roberts wrote, “they are bound by the provisions of the very documents that give them life.”

Many democracy advocates contend this is the most important piece of the ruling and will foreclose most challenges of state court decisions in the future.

“We will see cases, but I think almost certainly – unless something really screwy happens – they’re going to lose a lot,” said Cameron Kistler, a legal counsel at the nonprofit group Protect Democracy. “I think the Supreme Court is going to want to draw a pretty firm line here, because the last thing they want is for every election law determination by every state official and every state court to present a federal issue.”

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

Conservative Justice Clarence Thomas, who along with Justice Neil Gorsuch dissented on the case, warned that a signal is not enough. He bemoaned the majority’s refusal to spell out exactly when a state court would overreach, even if in most cases state courts will not.

“There are bound to be exceptions,” Thomas wrote. ”They will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment.”

Some election lawyers worried about just that possibility.

“It’s critical that the rules for elections are clear and specified in advance, including the rules that follow from judicial doctrine,” Rick Pildes, an NYU law professor, wrote on Tuesday. “We are going to see constant litigation around this issue in the 2024 elections until courts provide a more clear sense of the boundaries on state court decision-making.”