[co-author: Karian Salcedo1]
In what some deem the “800-pound gorilla” of election law,2 the U.S. Supreme Court, on June 27, 2023, rejected the so-called independent state legislature theory in Moore v. Harper. By a vote of 6-3, the Supreme Court held that state legislatures are not exempt from judicial review of their power to regulate federal elections.
The dispute began as a challenge to a congressional map the North Carolina General Assembly adopted in November 2021. The North Carolina Supreme Court set aside the map for impermissible partisan gerrymandering (redistricting that favors one political party) and held that the state legislature violated state constitutional provisions, including the requirement that “[a]ll elections shall be free.” After the trial court adopted new congressional lines, the General Assembly appealed to the U.S. Supreme Court.
Central to the General Assembly’s arguments was the “independent state legislature” theory. The federal Constitution’s Elections Clause delegates to state legislatures the power to set the “times, places and manner” of elections. The legislative defendants argued that this constitutional language grants state legislatures the sole authority to set election rules, independent of courts and regardless of state constitutions.
This theory first appeared in former Chief Justice Rehnquist’s concurring opinion in Bush v. Gore, where the Court halted Florida’s recount in the 2000 presidential election. But over two decades later, the Moore v. Harper majority put former Chief Justice Rehnquist’s independent state legislature theory to rest.
Writing for the majority, Chief Justice Roberts rejected the independent state legislature theory by holding that the Elections Clause does not vest state legislatures with exclusive and independent authority to set federal elections rules. Roberts relied on U.S. history to establish that judicial review is part of the nation’s legal tradition, especially in the context of state courts invalidating laws violating state constitutions. He reasoned that the Constitution does not exempt state legislatures from judicial review, not even for election-related laws.
Even so, Roberts cautioned that “state courts do not have free reign” to exceed “the ordinary bounds of judicial review” when considering laws governing elections. And federal courts must “ensure that state court interpretations of [the state legislature’s election laws] do not evade federal law.” However, Roberts did not provide federal courts further guidance, instead noting that “[t]he questions presented in this area are complex and context specific.” This means the contours of federal review of a state court’s interpretation of state law involving federal elections will be developed in future cases, which may include partisan gerrymandering claims.3
In addition to his points on mootness (the North Carolina Supreme Court withdrew its partisan gerrymandering opinion prior to the U.S. Supreme Court’s review), in dissent, Justice Thomas expressed his doubts regarding the majority’s reasoning on the merits. Concerned about how federal courts are to exercise judicial review over state court decisions implicating the Elections Clause, Thomas said the majority “opens a field for Bush [v. Gore]-style controversies over state election law.” Only time will tell if Justice Thomas is right.
Looking ahead, state courts may continue to strike state legislatively-approved election rules if they violate state constitutions. But it remains unclear what standard federal courts should use when reviewing those state court decisions.
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