Supreme Court Questions GOP-Led Case That Could Upend U.S. Elections

Topline

The Supreme Court wrestled Wednesday over the question of whether state legislatures should have unfettered power to determine election rules, with even some conservative justices signaling they may be hesitant to rule in GOP lawmakers’ favor and issue a ruling that could upend U.S. election processes and clear the way for widespread partisan gerrymandering.

Members of the League of Women voters rally outside the U.S. Supreme Court on December 7 in … [+] Washington, DC, as the court heard the case Moore v. Harper.

Getty Images

Key Facts

The Supreme Court heard oral arguments Wednesday in Moore v. Harper, a case brought by North Carolina lawmakers which asks the court to endorse what’s known as the “independent state legislature” theory.

That theory is based on the Elections Clause of the Constitution, which states that “the times, places and manner” of holding federal elections “shall be prescribed in each state by the legislature thereof.”

The North Carolina lawmakers, as well as many other Republicans, argue the constitutional language should mean that state legislatures are the only ones allowed to decide state election rules and draw congressional maps, rather than state courts or state officials like the Secretary of State.

Hanging in the balance is the future of how American elections are run, as giving state legislatures such power could let partisan lawmakers impose whatever voting rules or congressional maps they want without having to worry about being challenged in court.

Chief Justice John Roberts and conservative Justices Amy Coney Barrett and Brett Kavanaugh expressed hesitation about adopting such a wide-reaching policy.

The court’s liberal justices were even more clearly opposed to supporting the theory, with Justice Sonia Sotomayor saying endorsing the doctrine would be “rewriting history” and Justice Elena Kagan arguing a ruling in the petitioners’ favor would carry “big consequences” and would “[get]

rid of checks and balances at the time they are needed most.”

Contra

Other conservative justices on the court appeared more favorable to the independent state legislature theory, with Justice Neil Gorsuch suggesting the theory was backed up by historical precedent. Justice Samuel Alito questioned how it would be any more preferable to let state Supreme Court justices who are elected on a partisan basis decide election laws. While other conservative justices expressed more skepticism about the independent state legislature theory, they also left room for the possibility they could be persuaded by North Carolina lawmakers. Roberts suggested the “tension” between federal and state powers was “not easy” to grapple with, for instance, and Barrett questioned whether the court could limit state courts’ authority on federal elections.

What To Watch For

The court will issue its decision in the case by June. If it does side with North Carolina and upholds the independent state legislature theory, the case could give partisan state legislatures unfettered control over how their state’s elections are run. Legislatures would be able to make laws and draw congressional maps without being challenged in state court. The Brennan Center for Justice argued in an amicus brief the ruling could affect voting laws across the country including the right to a secret ballot, independent redistricting commissions, ranked-choice voting and automatic voter registration. “The result would be chaos,” the group wrote.

Tangent

Republicans who sought to overturn the 2020 election results repeatedly pointed to the independent state legislature theory as legal justification for challenging the vote count in court. Election law experts have said that there are other safeguards in place that should prevent this from happening successfully in the future if the Supreme Court endorses the doctrine, however, with Florida State University professor Michael Morely noting in a paper that there are “several major legal impediments” that would stop a state legislature from simply appointing its own electors if it didn’t like which way the popular vote went. Congress still has the power under the Constitution to “determine the Time of chusing [sic] the Electors” and federal law specifies that electors are appointed on Election Day, which would stop state legislatures from throwing out results and appointing new electors later.

Key Background

North Carolina lawmakers brought Moore v. Harper to the Supreme Court after state courts rejected the redistricting map they drew up for being too skewed toward the GOP and a new map was drawn up by different court-appointed experts. Legislators first asked the Supreme Court in February to block the maps that were created by the court-appointed experts, but the court denied its request, before ultimately deciding in June to hear the case for oral arguments. Though the Supreme Court rejected post-election lawsuits in 2020 that relied on the independent state legislature doctrine, conservative justices on the court had expressed their desire to take it up in recent months, saying they believed the court should rule on the issue in February when it initially rejected the North Carolina case. “We will have to resolve this question sooner or later, and the sooner we do so, the better,” Alito wrote in a dissent joined by Thomas and Gorsuch, saying the issue “is of great national importance.” Thomas also previously supported the theory in a concurring opinion in Bush v. Gore.

Surprising Fact

The independent state legislature theory has been primarily bolstered by conservatives, but when it comes to redistricting, it could actually benefit Democrats more. Harvard Law School election law professor Nicholas Stephanopoulos found in an analysis for the Democratic Party-aligned site Democracy Docket that upholding the theory and letting lawmakers set whatever congressional maps they want would actually affect more congressional seats drawn by Democratic legislatures than Republican ones. There are only two states—North Carolina and Arizona—where Republicans would benefit, Stephanopoulos found, versus eight states where Democrats would benefit, resulting in Democrats adding about five or six congressional seats while the GOP only adds two.