Some Justices Favor State House Power Over Presidential Elections

The US Supreme Court on June 27 rejected a novel interpretation of the Constitution that would give state lawmakers enormous and unchecked power over federal elections.

But three Supreme Court justices embraced a radical theory that could see states substitute presidential electors over the choices made by voters. The “independent state legislature theory” sounds like a storied doctrine. But it’s a new and potentially revolutionary idea.

Moore v. Harper was a case brought by a group of North Carolina legislators seeking to control how federal elections are run in that state, with no judicial oversight.

The North Carolina legislature drew a congressional map that was unconstitutionally gerrymandered, according to that state’s highest court. The legislators didn’t claim the ruling was wrong. Instead, they argued that the Elections Clause of the Constitution, which gives them authority to set the “times, places, and manner” of all federal elections, leaves no role for state courts or state constitutional constraints at all.

That would mean that even if a state legislature acts contrary to its own constitution, there’s nothing the top state court can do about it. This has become known as the “independent state legislature theory”—the claim that hidden in the Constitution is carte blanche for a state legislature to do whatever it wants when it comes to federal elections.

The theory is contrary to fundamental principles—ordinarily, federal courts defer to state courts on questions of state law, out of respect for both federalism and comity.

Yet three Supreme Court justices—Clarence Thomas, joined by Samuel Alito and Neil Gorsuch—went out of their way to embrace the theory. Those dissenting justices thought the issue was moot, since after a change in personnel, the North Carolina court reversed its own opinion. Accordingly, Thomas argued there was no reason for the court to reach the merits of the argument. Nevertheless, he wrote extensively, laying the groundwork for the court to reconsider the independent state legislature theory in future cases.

If that were to happen, it would have the immediate consequence of allowing heavily gerrymandered maps and nullifying hundreds of state constitutional provisions. But the theory has the potential to do much more than that.

Taken to its logical extreme, it would allow state legislatures to award a state’s presidential electoral votes to whichever candidate it prefers, regardless of who the state’s voters chose.

Three justices out of nine may sound like nothing to worry about. But the fact that this radical theory is getting support from one-third of the Supreme Court shows how far to the right the conversation has shifted in the last two decades.

This case illustrates how arguments that once lurked on the fringes have now taken a place in the mainstream.

The independent state legislature theory first emerged at the court 23 years ago, in Bush v. Gore, the case that, famously or infamously, decided the 2000 presidential election. Five justices, all appointed by Republican presidents, ruled that the recount standards in Florida violated the Equal Protection Clause, and that there was no time to remedy the situation. A few hours later, Vice President Al Gore conceded defeat, and George W. Bush became President-Elect.

Largely forgotten, however, is the full breadth of the arguments made by the Bush legal team. At oral argument, Bush’s lawyer, Theodore Olson, made an early form of the independent state legislature theory, arguing that the Florida Supreme Court, in ruling in favor of Gore, had usurped the legislature’s role.

That argument didn’t fare well at oral argument, especially not with the Supreme Court’s pivotal justice, Justice Anthony Kennedy: “To say that the legislature of the state is unmoored from its own constitution and it can’t use its courts … it seems to me a holding which has grave implications for our republican theory of government.”

Olson continued to defend the claim, but after further skeptical questioning from Kennedy and Justice Sandra Day O’Connor—both Republican appointed justices—he essentially gave up, admitting, “It may not be the most powerful argument we bring to this Court.” Kennedy replied, “I think that’s right.” Laughter followed.

That exchange, unusual in its directness, sums up the state of the independent state legislature theory at the time: the two most important right-leaning justices of the day were laughing the argument out of court. And the era’s most prominent Republican lawyer—soon to be Solicitor General of the United States—was conceding that it had little merit.

Yet three votes on the current Supreme Court support the theory. Thomas wrote for those three justices that a state legislative rule “transcends any limitations sought to be imposed by the people of a State,” i.e., a state legislature is not controlled by its own constitution.

The majority of the court correctly recognizes the error of this argument, concluding that “when legislatures make laws, they are bound by the provisions of the very documents that give them life”— i.e., state constitutions, which must be enforced by courts, including state courts.

Despite its “grave implications” for our system of government, a significant minority of the Supreme Court justices are on board. This shows how the spectrum of arguments that are taken seriously looks decidedly different than it did two short decades ago.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.

Cory Conley, J.D. candidate, Emory Law School, contributed to this column.

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