High stakes as SCOTUS weighs ‘independent legislature’ theory

The U.S. Supreme Court next month will hear arguments in a case that tests a new legal theory that could dramatically bolster the authority state legislatures wield over the future of American democracy.

When justices hear the case, Moore v. Harper, on Dec. 7, plaintiffs arguing on behalf of North Carolina House Speaker Tim Moore (R) will cite what they call the independent state legislature theory, an interpretation of provisions in the U.S. Constitution that posits that the founding document gives legislatures near total control over how states conduct elections.

The case stems from a dispute over the way North Carolina lawmakers draw political district lines, a legal war that has extended through more than a decade after Republicans seized control of the legislature after the 2010 elections.

Supporters of the independent legislatures theory point to two provisions in the U.S. Constitution. The Elections Clause says the times, places and manner of electing members of Congress “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 Electors Clause allows states to appoint, “in such Manner as the Legislature thereof may direct, a Number of Electors.”

Proponents of the theory read it as giving state lawmakers near-exclusive authority to regulate federal elections. They say it prohibits another state entity, such as state courts or a governor, from checking and balancing the legislature’s power.

Jason Snead, executive director of the Honest Elections Project, a conservative organization that filed an amicus brief in support of the theory, told NPR the case “gets to the very core of what it is to have a free election.”

But those who have sounded the alarm about a growing number of threats to American democracy see the independent legislatures theory as another power grab by Republicans in the wake of former President Donald Trump’s efforts to overturn the results of the 2020 presidential election.

“This theory is really radical, and, in past years, it would have been laughed out of the courts,” said Theresa Lee, an instructor at Harvard’s Election Law Clinic and a former senior staff attorney at the ACLU’s Voting Rights Project. “As true as that is, it doesn’t change the fact that it is a question in front of the courts and there is no guarantee the Supreme Court will laugh it out of the court.”

The latest front in that war began in 2021, when the Republican-controlled legislature approved district map lines that would have overwhelmingly favored Republicans. In February 2022, the North Carolina Supreme Court — at the time controlled by Democrats — struck down those maps, which they called an “egregious and intentional partisan gerrymander.”

A new map approved by the legislature was also rejected. The state Supreme Court appointed a special master to draw congressional district lines. In the 2022 midterm elections, North Carolina voters elected seven Republicans and seven Democrats to represent the state in Washington. 

At the heart of Moore’s case now before the U.S. Supreme Court is whether state justices had the authority to issue their ruling in the first place. 

“This party-line ruling is in direct contradiction to the rule of law and the will of the voters,” Moore said in an August statement. “It’s time to end the judicial coup that is unilaterally altering our Constitution and subverting the will of North Carolina voters.”

Conservative legislators in several battleground states that Trump lost in 2020 explored ways to overturn election results. In some states, Trump backers put together slates of alternative electors, a scheme now under investigation by both the U.S. House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol and the Department of Justice.

If the Court rules in favor of Moore, experts say federal electoral processes could change drastically. State lawmakers could adopt voter suppression legislation, disrupt mail-in voting, restrict same-day registration and more. Asher Hildebrand, a professor of public policy at Duke University, said a ruling in favor of Moore would create a two-tiered system, one for federal elections and one for state elections.

“The idea that state legislatures could somehow be exclusively responsible for state elections is just impossible. The way we’ve always conducted elections in this country is that federal laws make the rules of the game and state election workers execute those laws faithfully,” Hildebrand said.

Hildebrand said a broad interpretation in favor of the petitioners could allow election subversion a “green light to overturn the will of voters.” 

A narrower interpretation would serve as an invitation for a torrent of legal challenges any time a court deviated from exact constitutional dialogue. “It is not only radical, but also deeply impractical,” he said.

Gianna Gronowski is a writer based in Washington, D.C. Reach her at [email protected].