Supreme Court seems poised to reject robust reading of ‘independent state legislature’ theory

The Supreme Court struggled to find consensus Wednesday with a legal theory that could strip state courts’ ability to review election laws passed by legislatures, with a critical bloc of justices seemed likely to reject the most robust version of that theory that could mark a dramatic change in how states oversee elections.

The case — Moore v. Harper — surrounds North Carolina’s congressional map. There, the state Supreme Court tossed the maps drawn by the GOP-controlled Legislature as an illegal partisan gerrymander, with court-drawn maps ultimately being used for the 2022 election.

Republican legislators asked the U.S. Supreme Court to toss out those court-drawn maps, advancing a once-fringe legal idea called the “independent state legislature” theory, which argues that an interpretation of a clause in the U.S. Constitution leaves little — or no — room for state court review of election laws.

The spotlight for Wednesday’s oral arguments was focused on three of the high court's six conservative justices: Chief Justice John Roberts and Associate Justices Amy Coney Barrett and Brett Kavanaugh.

Those three justices will likely serve as the deciding factor in any decision. The court’s three liberals are were extremely hostile to the theory during oral arguments, while the three other conservative jurists have signaled sympathy for a muscular version of the theory, both in previous writings and during arguments in front of the court on Wednesday.

That left Roberts, Barrett and Kavanaugh as the justices who would likely be the backbone of any controlling opinion out of the court.

Questioning from Roberts to David Thompson, who was representing the Republican legislators, showed hostility to the theory.

“Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants," Roberts said, citing a 1930s Supreme Court case that found that the U.S. Constitution didn't prohibit governors from vetoing a congressional map passed by legislatures.

Kavanaugh and Barrett's questioning to Thompson was less revealing than Roberts. But Kavanaugh seemingly suggested that the version of the independent state legislature theory advanced by the North Carolina lawmakers was going too far. He noted that North Carolina is trying to go farther than a then-Chief Justice William Rehnquist's concurrence in the 2000 case Bush v. Gore, which is the origin of the theory that state courts have overstepped their role and that they could be hemmed in in some way.

Kavanaugh also raised a brief from the Conference of Chief Justices, a collection of chief jurists from the states, asking how to square their writing about the history of state courts applying state constitutions to federal elections, with the independent state legislature theory. Barrett, meanwhile, also seemed skeptical at times of the argument that Thompson was advancing, noting that state constitutions could be amended.

But later, Roberts’ questioning to Neal Katyal, who represented the groups that challenged the initial legislatively drawn maps, showed how some of the court’s swing conservative justices could still potentially rule in favor of the GOP lawmakers without embracing a robust interpretation of the independent state legislature theory. Roberts seemed to be potentially probing for a way to constrain state courts in some way, particularly on what could be decisions based off broad constitutional provisions.

“Do you think the phrase fair and free elections is providing standards and guidelines?” he asked Katyal, who responded affirmatively. And both Kavanaugh and Barrett questioned Katyal on the Rehnquist concurrence — with Katyal arguing that the federal judiciary should only intervene to second-guess a state court ruling on its own constitution at a “sky-high” standard.

The court's liberal justices raked Thompson over the coals. At one point, Justice Sonia Sotomayor accused the GOP legislators of trying to "rewrite history" of early state constitutions in an effort to support their point.

And Justice Elena Kagan, saying she wanted to "step back a bit and think about consequences," said this theory would get "rid of the normal checks and balances on the way big governmental decisions are made in this country."

Meanwhile, the court's more conservative triumvirate — Justices Samuel Alito, Neil Gorsuch and Clarence Thomas — all broadly seemed more likely to endorse a more robust reading of the independent state legislature doctrine. But even among those conseratives there was some ambivalence to the arguments put forward by the Republican legislators, who advocated for a reading of the theory that would remove nearly all of state courts' jurisdiction. Beyond that, there is the broader challenge of winning over two of the three other conservatives, who did not seem to accept the broader interpretation.

“There’s been a lot of talk about the impact of this decision on democracy. Do you think it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign?” Alito asked at one point.

Wednesday’s oral arguments will have ramifications far beyond just North Carolina’s congressional lines, which have been redrawn several times over the course of the last decade.

A robust adoption of the independent state legislature theory by the court could grant state legislatures significantly more power in setting the rules of the road for elections. A particularly muscular version of the theory would prevent state courts from weighing in on disputes over everything from voter ID to last minute polling place adjustments, and could even imperil voter-passed referendums on things like independent redistricting commissions.

There are also significant questions on how, if at all, Wednesday’s case could affect the rules surrounding the selection of presidential electors. Some of the most strident proponents of the theory have raised connections to presidential elections in briefs, but many legal experts — including those who oppose the independent state legislature theory — do not believe this case will have much ramifications on presidential elections.

Presidential electors were not raised during oral arguments on Wednesday.

The Moore case is the second significant election law case that the Supreme Court heard this term. In early October, the Supreme Court heard arguments in another redistricting case, where Alabama argued for a “race neutral” reading of the federal Voting Rights Act, the landmark civil rights law that has led to more minority representation in politics. The court seemed unlikely to adopt that interpretation, but seemed likely to rework the legal test used to determine if minority communities’ voting power is being diluted, likely making it harder to bring challenges.