Election Law and the Independent State Legislature Theory

ANTHONY MENA ACOSTA—Election law has been at the forefront of American political and legal discourse since the 2020 presidential election, which saw former President Donald Trump and his allies file 62 lawsuits challenging the result of the election. This year, election law has remained in the news, with the Supreme Court taking up two cases involving voting. On October 4, 2022, the Court heard oral argument in Merrill v. Milligan, which concerns a challenge to Alabama’s redistricting plan under the Voting Rights Act. Opponents argue that the plan violates Section 2 of the Act by diluting the voting power of minorities in the state, while Alabama argues that Section 2 of the Act allows for the state to take a race-blind approach to redistricting. A three-judge federal panel, with two judges appointed by former President Trump, previously held that the plan violated Section 2 of the Act.  However, analysts expect the Supreme Court to uphold Alabama’s redistricting plan, thus diluting plaintiffs’ ability to challenge racial discrimination in the redistricting process. 

On December 7, 2022, the Supreme Court heard oral argument in the second of the election law cases, Moore v. Harper,  which may have even greater and far-reaching consequences. This case concerns the “independent state legislature” theory, which focuses on the meaning of the word “legislature” as used in the Election and Presidential Elector Clauses of the Constitution. The Election Clause is found in Article I ,Section 4 of the Constitution and reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” The Presidential Elector Clause, meanwhile, is found in Article II, Section 1 and states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

Proponents of the independent state legislature theory argue that the use of the term “legislature” in these clauses means that only state legislatures can make laws regulating federal elections. This contrasts with the standard interpretation that the term includes each state’s entire lawmaking processes, including the governor’s veto and state court rulings. If the Supreme Court were to accept the independent state legislature theory, it would mean that actions undertaken by state legislatures regarding federal elections—including partisan gerrymandering—would no longer be reviewable by state appellate courts.  Decisions about fundamental aspects of elections, including voter registration and polling places, would likewise be unreviewable by state courts, even if they violate the state’s constitution. 

The specific issue in Moore v. Harper is whether the North Carolina Supreme Court has the power to strike down the heavily gerrymandered congressional map proposed by Republican lawmakers for violating the state’s constitution. This map was so extreme in its composition that an evenly divided popular vote would have awarded ten seats to the Republican candidates and only four to the Democratic candidates. At trial, experts testified that this particular gerrymandered map was more favorable to Republicans than 99.99% of all possible maps.  The North Carolina Supreme Court held in February 2022 that the plan violated the state’s constitution and directed the state’s legislature to redraw the maps. North Carolina now argues that under the independent state legislature theory, the court had no authority to do so.

If the Supreme Court adopts the independent state legislature theory, the impact of this decision would extend far beyond North Carolina. Not only would North Carolina’s gerrymandered map stand, but it is also likely to result in a tidal wave of gerrymandered redistricting plans across the United States. State courts have previously struck down partisan gerrymandering in several states including FloridaOhioMaryland, and New York. Beyond gerrymandering, state legislatures would also have control over matters such as early voting procedures and voter ID requirements, politically controversial topics that would no longer be subject to state court review or gubernatorial veto. Some experts worry about the potential for election subversion, asserting that the independent state legislature theory would allow state legislatures to argue that they have the power to pick a slate of electors different than that chosen by voters. This argument was proposed by former President Trump in his legal challenges to the 2020 election. 

Moore v. Harper is just the latest example of the increased emphasis on election law in American politics and the Supreme Court’s willingness to weigh in on such debates. It has the potential to drastically change the landscape of elections and election law and give state legislatures nearly unchecked powers in running federal elections. The Court is expected to release its decision in the summer of 2023.