In a North Carolina case, the court is being asked to decide whether to dramatically expand the authority that state legislatures have over election maps and voting laws.
WASHINGTON — It is a case “with profound consequences for American democracy,” said J. Michael Luttig, a former federal appeals court judge long a hero to conservatives.
Chief Justice Nathan L. Hecht of the Texas Supreme Court, a Republican, has said it is “the biggest federalism issue in a long time, maybe ever.”
On Wednesday, the U.S. Supreme Court will hear arguments in Moore v. Harper, a dispute between voting rights advocates and North Carolina’s General Assembly, which is controlled by Republicans, that could dramatically increase the power that state legislatures have over voting issues.
Just how much power is at issue could become clearer as the arguments play out. But there is no arguing how high the stakes are in this lawsuit. The court is being asked to decide whether state election laws and political maps passed by state legislatures — specifically, a Republican gerrymander of North Carolina’s 14 House seats that the state’s Supreme Court ruled unconstitutional this year — should continue to be subject to judicial review in state courts.
Republicans seeking to restore the legislative map have argued that the state court is powerless to act under what had been a fringe theory known as the independent state legislature doctrine. The theory argues that the federal Constitution gives state lawmakers sweeping power to draw maps and set election rules — even if they violate a state’s laws or its constitution.
The issue comes at a time when gerrymanders have become so extreme and technologically sophisticated that they can enable parties to almost indefinitely lock in political dominance. When new state legislatures convene next year, 28 will have a Republican majority (as will essentially Nebraska, which is nonpartisan in a Republican state), 19 will be Democratic and two will be split.
That is contentious enough by itself. But the Moore case also has a marked ideological cast. A Supreme Court increasingly in tune with the political right is being asked to ratify a legal concept favored by some ardent conservatives — one that four Supreme Court justices have already expressed at least tentative support for.
At the same time, many in the legal and political establishments see a dangerous subversion of democratic values.
Judge Luttig said that, absent changes in federal law governing the counting of electoral votes, an unconstrained legislature might be able to substitute its own slate of presidential electors for the ones voters had chosen on Election Day — the very strategy former President Donald J. Trump employed in trying to overturn his election loss in 2020.
The theory’s broadest reading would deny all other state government entities — courts, election administrators, governors, independent redistricting commissions — any say in rules on elections or districts.
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That would upend centuries of legal tradition. State constitutions and courts have been a check on election laws for virtually all of the nation’s history, including during the extraordinary barrage of legal battles over election rules this year and in 2020.
But North Carolina Republicans argue that because setting “the times, places and manner” of holding elections was specifically assigned by the Constitution to state legislatures, state courts can no more overturn or modify election laws than they can override federal laws governing, say, clean water or worker safety.
“The reason, of course, that state courts don’t have any substantive role to play is that they’re not part of the legislature. It’s that simple,” said David B. Rivkin Jr., a constitutional lawyer and conservative commentator who has filed a friend-of-the-court brief in the case.
“If you don’t like a redistricting map or a state election law, you can absolutely bring suit in federal and state court,” he added. “What you cannot do is rely on any substantive provision in the state constitution to take it down.”
Proponents of the theory also say another concept favored by conservatives — reading the Constitution by the plain meaning of its text, and not leavened with modern interpretations — supports their argument. The Constitution delegates duties to legislatures only three times. That was no idle choice, they argue.
“By its plain text,” North Carolina Republicans told the justices, the Constitution “creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature’ of each state. It does not leave the states free to limit the legislature’s constitutionally vested power.”
Opponents of the independent state legislature theory say it is a profound misreading of both history and constitutional law that, if accepted, would shatter checks and balances in state governments.
A ruling favoring the state legislators “would give them a free ticket to do what they want,” said Gov. Roy Cooper of North Carolina, a Democrat. “And what you will see is requiring strict voter ID, eliminating same-day voter registration, eliminating provisional ballots, shortening the period for early voting.
“What they want to be able to do is draw more Republican districts and engage in more gerrymandering.”
Accepting the theory would not free state legislatures from oversight by federal courts and Congress, which has its own constitutional mandate to write election laws.
But, in practice, the change would have sweeping ramifications.
Untrammeled gerrymandering sits atop the list. State court rulings that brought fairer political districts to North Carolina, Pennsylvania, Michigan, New York and elsewhere would be wiped away.
At least in federal elections, citizen ballot initiatives that created independent redistricting commissions in California, Arizona, Michigan and elsewhere could be invalidated. The same could be true of ballot initiatives that have addressed voting rights in states like Michigan and Arizona, or expanded voting by mail in places like Oregon.
New election methods approved by voters, such as ranked-choice voting in Maine and single-primary elections in California and Washington, could also be scrapped.
Federal courts would become principal arbiters of election laws — and, critics predict, would be swamped with litigation. But, for state elections, the same laws could be challenged in state courts, potentially forcing separate election systems for federal and state offices.
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The theory also applies to constitutional rules for selecting presidents: Article II of the Constitution requires states to appoint presidential electors “in such manner as the Legislature thereof may direct.”
Judge Luttig said he opposed freeing state legislatures from judicial review of election matters. But the independent state legislature theory’s potential impact on presidential electors, he said, is of greater concern.
In lawsuits during the 2020 presidential campaign, Mr. Trump’s supporters effectively sought to win legal backing for the theory, and took that crusade to the Supreme Court after the election. The court refused to take the case.
“This was really the centerpiece of the effort to overturn the 2020 election,” Judge Luttig said.
Other election law scholars have said it is unlikely that putting the theory into effect could disrupt a future presidential election, in part because federal law requires that presidential electors be chosen on Election Day, and state laws delegate those choices to voters.
At first blush, the lawsuit would seem to face dim prospects before a Supreme Court whose majority believes the Constitution must be true to the intent of the framers. Even its advocates find no evidence that the Constitution’s authors debated the theory or paid attention to the use of “legislature” in Articles I and II.
State constitutions set rules for federal elections, such as requiring votes by ballot instead of by voice, even under the Articles of Confederation that preceded the Constitution, said Carolyn Shapiro, a constitutional law professor at the Chicago-Kent College of Law who has written extensively on the issue.
“There’s nothing in the contemporaneous materials,” she said, “to suggest that anybody intended” what proponents of the theory contend.
The theory also faces a logical hurdle: Article I delegates authority over elections to both state legislatures and Congress. No one suggests that election laws enacted by Congress can ignore the Constitution and are shielded from federal court review.
The theory is further hobbled by the fact that the Supreme Court itself said in 2019 that state constitutions and independent redistricting commissions were useful weapons in the battle against gerrymanders, in a landmark ruling that stated political maps were outside the purview of federal courts.
The idea that state legislatures had special electoral powers persisted over the decades, in debates like one over whether Civil War soldiers were legally able to cast ballots away from home. But it was widely dismissed until Chief Justice William Rehnquist raised it in a concurring opinion to the court’s ruling on the disputed 2000 presidential election.
He argued that an order by Florida’s Supreme Court to recount votes was invalid because it changed election law passed by the legislature. The majority of the court ignored the idea, and rejected it outright in 2015, saying Arizona voters could give the legislature’s redistricting authority to an independent commission.
But it resurfaced in 2020, when partisan fights over the legality of mail ballots drew approving references to the theory from Justices Brett Kavanaugh and Samuel Alito. Justices Clarence Thomas and Neil Gorsuch have also endorsed aspects of the idea, leaving the court one justice away — in theory, anyway — from a majority.
A majority for exactly what, however, is an open question. There are many versions of the theory, from those that make state legislatures all-powerful to less doctrinaire ones that allow state constitutions and state law to dictate some aspects of elections but not others.
If the court chooses any of them, it will end up ruing the day, said Nate Persily, a professor of constitutional law at Stanford University.
“Wouldn’t it be ironic,” he said, “if the Supreme Court, which worried about descending into the political thicket by regulating partisan gerrymanders, nevertheless throws our entire election system into disarray?”