The Supreme Court on Tuesday rejected the radical argument brought forward in the controversial case of Moore v. Harper that state legislatures have the sole power to draw congressional district maps and set election law.
The independent state legislature theory that Republicans in the North Carolina legislature wanted the court to adopt claims that the U.S. Constitution vests power to set the “time, place, and manner” of federal elections to state legislatures alone. This would give state courts no ability to rule on gerrymandered maps or other election laws that may run afoul of their respective state constitution. State legislatures, themselves often gerrymandered to give one party majority control, would then have free rein to draw congressional maps and set election laws without judicial checks and balances.
The court rejected this theory in a 6-3 decision written by Chief Justice John Roberts by affirming the role that state courts have to play in judging district maps drawn by state legislatures.
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The heart of the case centered on the Elections Clause of Article I of the U.S. Constitution. That clause states that “the Legislature” of each state has the power to set the “time, place, and manner” of federal elections within its own boundaries. Proponents of the independent state legislature theory argued that “the Legislature” should be properly defined to mean the state legislature alone.
The court rejected this argument and affirmed that “the Legislature” included the whole body of state government, including the courts and the governor.
Liberals and conservatives ― from former attorney general Eric Holder and Democratic Party lawyer Marc Elias to retired federal judge Michael Luttig and Federalist Society co-founder Steven Calabresi ― opposed the adoption of the theory. They argued that if the court adopted the theory it could lead to a subversion of democracy and the enshrinement of minority rule.
The theory was at the heart of former President Donald Trump’s effort to overturn his loss in the 2020 election and led directly to the Jan. 6 insurrection. Trump turned to the independent state legislature theory in arguing that state legislatures could submit competing slates of electoral votes in favor of him to Congress ahead of the Jan. 6 counting of the votes. When no legislature did this, Trump and his lawyer John Eastman got GOP electors to submit fake slates in their bid to get then-Vice President Mike Pence to declare the result in key states contested and not count their votes.
Moore v. Harper dealt only with congressional elections and did not directly raise the possibility of putting the submission of electoral college votes solely in the hands of state legislatures. But had it succeeded, it would have provided greater rhetorical heft to future efforts by presidential candidates who lie, claim election fraud and attempt to steal elections.
