Why States Matter (More Than Ever): SCOTUS Saves Us, Sort Of
Phew! A close call, but our tottering democracy lives to see another day: last week, in Moore v. Harper, the US Supreme Court rejected the radical “Independent State Legislature” theory (ISL), which would have granted state legislatures complete and unfettered power to regulate federal election administration, state constitutions/state courts/governors/voters be damned.
(It should be noted that Moore was announced two days before SCOTUS dismantled affirmative action, one day before SCOTUS legalized anti-LGBTQ+ discrimination and axed student-debt relief (a two-fer!), almost a year to the day after SCOTUS demolished Roe v. Wade, and *deep breath* almost exactly ten years after SCOTUS eviscerated the Voting Rights Act. But let’s accentuate the positive.)
“Hang on,” you might protest. “Sister District Project is all about state legislative power! Besides, isn’t independence… good?” True and yes. But as SDP co-founder Gaby Goldstein has been warning for years, ISL perverts the concept beyond recognition. That whole American “checks and balances” thing? Fuggetaboutit! ISL would grant state legislatures free rein to draw gerrymandered congressional maps and enact voter suppression laws, leaving state courts powerless to rule on the constitutionality or unconstitutionality of these actions. Election commissions and officials would likewise have no say. Independent redistricting commissions, currently operating in nine states, could be silenced.
How on earth could this kind of blatant legislative power-grab be seriously considered? Because, according to ISL proponents, the US Constitution says so. Citing Article 1, Section 4 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof”) and Article 2, Section 1 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors”), ISL proponents argue that “Legislature” refers to, literally, just the legislature. A textualist argument, indeed…
… And A Radical One.
ISL is a “bogus and ahistorical reading of the Constitution,” per the Brennan Center for Justice, reversing as it does “the long-running understanding [that ‘legislature’] refers to each state’s general lawmaking processes, including all the normal procedures and limitations.” In fact, the Founding Fathers, so venerated by the right, explicitly distrusted state legislatures’ ability to manage elections fairly; despite his recommendation that states retain “a very extensive portion of active sovereignty” within a larger national government, for example, James Madison supported Congressional power to override states’ election administration laws as a necessary corrective to “abuses.”
Accordingly, a number of mechanisms exist to constrain state legislatures from doing whatever the heck they want. These include…
· State constitutions, which empower governors to veto legislation; may also contain provisions protecting the right to a secret ballot, forbidding partisan gerrymandering (especially important since SCOTUS’ 2019 ruling that claims of partisan gerrymandering must be left to state, not federal, court review), protecting the right to abortion (especially important since… you know), etc.;
· Citizen-led ballot measures, which allow voters to make their voices heard despite inaction or opposition by the state legislature;
· State courts, which can exercise “judicial review” to declare certain legislative actions constitutional or unconstitutional.
When it comes to federal election administration, ISL treats these safeguards as impediments, to be mowed down by state legislatures intent on implementing whatever laws they please.
According to the Brennan Center, adopting ISL would ultimately undermine hundreds of state constitutional provisions, hundreds of state court decisions, and 650+ “delegations of authority by state legislatures to other state officials to administer federal elections.” Worst-case scenario, a state legislature could charge an election official with misinterpreting federal election law, refuse to certify the results of a presidential election, and select its own slate of electors (sound familiar?). According to renowned conservative Judge J. Michael Luttig, the “independent state legislature theory was the centerpiece of the former president’s effort to overturn the 2020 presidential election, without any doubt.” So, phew.
How Did We Get Here?
In Bush v. Gore (2000), Chief Justice Rehnquist propounded a nascent version of ISL, writing in his concurrence that Florida’s state court exceeded its authority when it ordered a partial vote recount. Right-wing nuts have seized on the concept in recent years, most recently in Moore, which stemmed from a map, drawn in 2021 by the GOP-controlled North Carolina state legislature, allotting 10 of 14 congressional seats to Republicans. (No surprise here; NC is one of “the most extremely gerrymandered states in the nation,” per the Princeton Gerrymandering Project. Not coincidentally, NC also happens to be a 2024 Sister District target state.)
Voters sued, and in Feb. 2022, the Democratically controlled NC State Supreme Court struck down the map, deeming it an “egregious and intentional partisan gerrymander” that violated the “free and fair elections” mandated by the state constitution. The GOP’s sneaky attempt to draw a second, equally gerrymandered map was rejected and ultimately replaced by a Court-drawn 7–7 map, to be used in 2022 congressional elections. (Nb: in NC, voters elect their judges; yet another reason to get voters to the polls!)
Unwilling to accept this verdict (sound familiar?), Republicans appealed to the US Supreme Court, invoking ISL to argue in Moore v. Harper that the NC Court exceeded its authority when it reviewed the state legislature’s actions. In other words, the legislature should be free to violate its own state’s constitution and draw whatever congressional maps it damn well pleases, free of Court meddling, er, oversight.
Thankfully, SCOTUS rejected this argument, ruling once and for all that state courts may review a state’s federal election laws. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” writes CJ Roberts. “We hold only that state courts may not transgress the ordinary bounds of judicial review.”
However…
Despite clearly rejecting the most extreme version of ISL, Moore leaves open a number of pesky questions. How much judicial review is permissible? What constitutes “ordinary bounds”? And what happens when state courts transgress these bounds? “[S]tate courts do not have free rein” over election law, writes Roberts. J. Kavanaugh elaborates in his concurrence: “a state court’s interpretation of state law in a case implicating the Elections Clause is subject to federal court review.” So when, exactly, do federal courts get involved? Some legal scholars foresee reams of election lawsuits necessitating intervention by federal courts.
And here’s another question: courts may review state-legislative decisions, but what happens when a state court deliberately abdicates its power to do so? Case in point: North Carolina again, where a last-minute plot twist renders Moore moot, at least until the next judicial election in eight years. In 2022, the NC state Supreme Court flipped to a 5–2 Republican majority, and Republican state legislators, smelling blood, immediately asked the new iteration of the Court to rehear — and overrule — its original decision to toss out the gerrymandered congressional map. The Court took the highly unusual step of not only obliging, but vacating its previous decision and ruling that, in fact, the legislators were correct: partisan gerrymandering was a matter for the legislature, not the state Court, and the Court had overstepped its bounds. The NC state legislature is now free to gerrymander away, and by some estimates, a new congressional map, likely redrawn this summer by GOP state legislators, could result in an 11R-3D imbalance.
The Bottom Line
A power-hungry state legislature, enabled by a precedent-tossing state Supreme Court, will find a way to silence voters, Moore or no Moore. Rather than crumple in despair, we must redouble our efforts to expand voting rights in defiance of GOP efforts at voter suppression, and we must search out, support, and elect ethical, humane state legislators (and, in the case of NC, state judges).
State legislatures continue to make most of the laws that affect our daily lives — and now, thanks to SCOTUS, they oversee two of the most important issues of the day, abortion and partisan gerrymandering. Let’s make sure they do it right.
- Juliet Eastland
