Majority of Justices Appear Skeptical of ‘Theory’ Giving States Unchecked Power Over Elections

December 8, 2022 by Dan McCue
Majority of Justices Appear Skeptical of ‘Theory’ Giving States Unchecked Power Over Elections
Supreme Court building (Photo by Dan McCue)

WASHINGTON — A clear majority of justices — cutting across the Supreme Court’s ideological spectrum — appeared to be skeptical on Wednesday of a legal theory that could give state legislatures unchecked power over federal election-related matters.

As previously reported in The Well News, the case before them on Wednesday, Moore v. Harper, tests an atypical approach to state legislative power over congressional elections called the independent state legislature theory.

Adherents of the theory hold that the U.S. Constitution gave state legislatures absolute power over congressional elections, regardless of any constraints imposed by their own state constitutions.

Or as attorney David Thompson, arguing for the petitioners, stated early on in the proceedings, “The founders asked state legislatures with federal functions that transcend any substantive limitation sought to be imposed by the people of the state.” 


Opponents of the theory dismiss it as legal quackery, but fear a broad ruling in Moore could upend elections laws and citizen initiatives all across the country and lead to a flurry of new efforts to gerrymander congressional district maps.

“To accept [the] petitioners’ claim, you’d have to ignore the text, history and structure of our federal Constitution as well as nearly every state constitution today,” said Neal K. Katyal, who argued on behalf of a group of private respondents.

“Petitioners say for two centuries nearly everyone has been reading the clause wrong,” Katyal continued. “That’s a lot of wrong and a lot of wrong past elections. 

“Frankly, I’m not sure I’ve ever come across a theory in this court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today,” he said.

The Supreme Court has never endorsed the independent state legislature theory, though four current justices — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito Jr. and Brett Kavanaugh — have cited it in decision dissents and concurrences.

The question the justices have been asked to decide is whether state election laws and political district maps passed and/or adopted by state legislatures should continue to be subject to judicial review in state courts.

“This is a theory with big consequences,” Justice Elena Kagan said as she questioned Thompson. “It would say that even if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that.

“It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections … and it might allow the legislatures to insert themselves into the certification of elections and the way election results are calculated.”

In short, she said, “I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country.”

Down the dais and across the political spectrum from Kagan, Justice Amy Coney Barrett noted that when Thompson was addressing questions posed by Justice Sonia Sotomayor, “you were talking about the lack of judicially manageable standards for … free and fair elections.”

“Why don’t you think — why do you think that that’s less judicially manageable than, say, deciding whether something is substance versus procedure or an egregious departure, truly novel?”

And Roberts took issue with a concession Thompson early on in his presentation: namely that state legislative action under the elections clause is subject to the governor’s veto.

“Well, the governor is not part of the legislature. Why do you concede that point?”

“We’re prepared to accept all the court’s precedents, number one,” Thompson said.

“Number two, I think the Arizona dissent pointed out that Samuel Johnson defined ‘legislature’ by reference to Matthew Hale’s definition, where he said the three branches of the legislature, the two Houses of Parliament and the king, because it was understood at the time of the founding New York and Massachusetts had gubernatorial veto. So it was understood that the governor had a role to play at the time of the founding, and at least it’s arguably grounded in the text.”

“That’s a pretty significant exception. You have otherwise a very categorical case and then you’re sort of saying, ‘Well, with this one exception,’” Roberts said.

“Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants,” he said.

“That’s a procedural limitation,” Thompson said. “Here we have a separate issue. What we have here is a limiting of legislative power. … What can’t happen is there can’t be a substantive limitation on that by some in power.”

In 2019, the Supreme Court ruled that federal courts have no role to play in cases in which political gerrymandering has occurred — in other words, those in which plaintiffs are complaining that political boundaries have been drawn for partisan gain.


In making that distinction, the court rejected challenges to Republican-drawn congressional districts in North Carolina and a Democratic district in Maryland.

Roberts, writing for the majority, said it was clear that the districting plans at issue were “highly partisan by any measure,” but he went on to write that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”

In explaining his reasoning, Roberts wrote that none of the proposals the court reviewed for evaluating such gerrymandering claims meet the need for there to be a limited, precise standard that can be applied in such cases.

“No one can accuse this court of having a crabbed view of the reach of its competence,” Roberts wrote. “But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.”

As far as the majority was concerned then, voters and elected officials and state courts should be the arbiters of political disputes within the states.

“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote in an opinion joined by Justices Neil Gorsuch, Alito, Kavanaugh and Thomas.

Earlier this year, the North Carolina State Supreme Court struck down districts drawn by Republicans who control the Legislature because they heavily favored Republicans in the highly competitive state. 

In doing so, the state joined five others in which state courts have ruled that overly partisan redistricting for Congress violated their state constitutions. 

The others are Florida, Maryland, New York, Ohio and Pennsylvania.

The court-drawn map used in last month’s elections for Congress in North Carolina produced a 7-7 split between Democrats and Republicans.

But before that happened, an emergency appeal was filed with the U.S. Supreme Court.

Though the request to allow the Republican-drawn map to be used this year was turned away by a majority of justices, the emergency filing did allow Alito, Gorsuch and Thomas to explain that they would have allowed the use of the GOP map this year.

In a dissent, Alito wrote for the three justices that “there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”

On Wednesday, Alito probed the the theory from a number of different directions.

At one point he asked whether even under the theory, “isn’t it inevitable that there will be questions about
the meaning of statutes enacted by the legislature to govern elections?”

And if so, he asked, “isn’t it inevitable that the state courts are going to have to interpret those provisions, and isn’t it inevitable that state election officials in the Executive Branch are going to have to make decisions about all sorts of little things that come up concerning the conduct of elections?”

Later, he seemed particularly concerned about the power of the state Supreme Court to intervene, and whether there are adequate checks and balances on its power.

But Solicitor General Elizabeth Prelogar argued that’s not the issue being raised in this case.

“Throughout our nation’s history, state legislatures enacting election laws have operated within the bounds of their state constitutions enforced by state judicial review,” she said. “This practice dates from the Articles of Confederation, and the framers carried it forward by using parallel language in the elections clause to assign state legislatures a duty to make laws. 

“Text, long-standing practice and precedent show that the elections clause did not displace this ordinary check on state law-making,” Prelogar continued. “Petitioners’ contrary theory rejects all of this history and would wreak havoc in the administration of elections across the nation. 

“Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding,” she said. “That would sow chaos on the ground as state and federal elections would have to be administered under divergent rules and federal courts, including this court, would be flooded with new claims, often at the 11th hour, in the midst of hotly contested elections. 


“The court should adhere to the consistent practice that has governed for more than two centuries and should reject petitioners’ atextual, ahistorical and destabilizing interpretation of the elections clause,” Prelogar added.

Dan can be reached at [email protected] and @DanMcCue

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