Q&A: An opponent of independent legislature theory on what’s at stake

The U.S. Supreme Court next month will hear arguments in Moore v. Harper, a case that will test a so-called independent legislature theory that would give broad new powers to state legislatures that oversee the decennial redistricting process and the manner by which presidential electors are chosen.

To get a sense of the questions justices will face, and pose, and of the magnitude of their potential decision, we spoke with Carolyn Shapiro, associate dean and professor of law at Chicago-Kent College of Law. Shapiro co-authored an amicus brief filed with the court against the independent legislature theory.

The conversation has been lightly edited for length and clarity.

Pluribus News: How would you describe what the independent state legislature theory is?

Professor Carolyn Shapiro: The theory is that because the federal Constitution says that state legislatures have the power to regulate presidential and congressional elections, that when they do so they operate without the ordinary checks and balances that apply to all the other things that they do as lawmakers. So, they can choose to violate their own state constitutions because their state constitutions somehow don’t apply to this particular context, they kind of operate in a constitutional law free zone.

PN: Where did the theory in this case come from?

Shapiro: In 2000, we had Bush v. Gore which ultimately decided the 2000 election. One of the arguments that the Bush campaign made was a version of this theory. They said the Florida Supreme Court had overstepped by construing a statute that had to do with recounts by relying on the Florida constitution as a guide to interpreting the statute. Chief Justice [William] Rehnquist and [Justice Antonin] Scalia and [Justice Clarence] Thomas joined in an opinion that endorsed a version of the ISLT. 

So that was 2000. There was a small flurry of scholarship and then nobody talked about it. In 2015, the court decided a case called [Arizona State Legislature v.] Arizona Independent Redistricting Commission which did raise issues related to the ISLT. One of the arguments against the constitutionality of that commission was that it violated the ISLT — the court said no, 5 to 4. Then [a few years ago] a law professor named Michael Morley published an article about the ISLT that sort of elevated it. It’s not like nobody’s made an argument about this for a hundred years, it has popped up here and there, but it hasn’t had any legs.

PN: What makes this different this time around?

Shaprio: This is the first time that the Supreme Court is going to be deciding whether a state constitution can be interpreted by a state supreme court to restrict how the state legislature does its congressional redistricting.

PN: Is this a case of conservative legal scholars retrieving this idea from the Founding Fathers?

Shapiro: There’s zero evidence that the Founding Fathers intended this. I think it comes from smart lawyers’ brains. You read the Constitution, it does say the word “legislature” in two places in the Constitution. People who are trying to represent their clients in high stakes litigation try a lot of things. It’s opportunistic. Lots of arguments in litigation are opportunist, that’s the nature of the beast.

PN: What makes this case so potentially significant when it comes to election law?

Shapiro: The ordinary understanding is that state law governs elections and the federal government can act in some respects to preempt that state or to constrain that state law. But where it hasn’t or where it doesn’t have the power to, it’s totally up to the states. That’s been the long-standing understanding. 

The ISLT, especially in its most maximalist versions, says “no, actually it’s only up to the state legislatures, so when the state legislature passes a law pursuant to these federal constitutional assignments of duties, they do so and can’t be constrained by their state constitutions or their state courts.” So actually it federalizes state election law in a bizarre way and really shifts an enormous amount of power to the federal courts and even more to the U.S. Supreme Court.

PN: What would some of the ramifications be if the court were to recognize this theory?

Shapiro: There are untold numbers of statutes and regulations and constitutional provisions in the states that would all be called into question, because for 200-plus years this has not been a thing. And I know there are some justices who don’t think it matters how disruptive the holding might be. I think they primarily think about it as an originalist matter, and I think that’s deeply misguided.

PN: Could there be other implications of such a ruling?

Shapiro: If they recognize it, it invites unending amounts of litigation because they’re not going to be able to say this is it and no further. They’re going to say “we’re not deciding X,Y, Z or Q,” and then all of those X, Y, Z and Q lawsuits, and other ones that smart lawyers will think of, are going to be popping all over the place and the Supreme Court is going to end up being like the election arbiter of the country, which I can’t imagine why they would want that. But that’s what will happen.

PN: What are the potential ramifications for redistricting?  

Shapiro: They might find themselves overruling Arizona Independent Redistricting Commission. And there have been a whole series of state constitutional amendments in recent years that try to get at the problem of partisan gerrymandering and all of those would be called into question. 

That’s just redistricting. There’s also all kinds of other constitutional provisions, constitutional enactments, enactments into law by initiative — all of those things would be called into question, at least as they apply to federal elections. So, it would be a mess.

PN: If a majority of justices embrace the idea of the independent state legislature theory, what might the ruling look like?

Shapiro: I think the narrowest grounds it could rule would be something like this: We have these very broad and general constitutional provisions, there’s nothing to suggest that those constitutional provisions initially were intended to apply to extreme partisan gerrymandering, so we buy this argument that the North Carolina Supreme Court is doing something that’s more akin to legislation than judicial decision making. 

I don’t buy that at all, but that would be the argument. And because it’s a case about redistricting, the challenged provisions apply only to congressional elections.

PN: Have the justices given any indication about their thinking?

Shapiro: During 2020 and the aftermath, Justices [Samuel] Alito, Thomas and [Neil] Gorsuch all wrote at various times and in various ways very much in favor of the ISLT. All three of them seemed to be concerned about statutes being construed in ways they didn’t agree with, they talked about state courts just writing statutes. So, the three of them have really taken very, very strong positions in favor of a pretty maximalist ISLT. 

Justice [Brett] Kavanaugh, early on in the 2020 session, wrote an opinion and joined one of Gorsuch’s opinions and voted in another case in ways that suggested he was very sympathetic, but then he kind of backed off, so I’m not sure what to make of that. I have no idea where Justice [Amy Coney] Barrett is. 

The Chief Justice [John Roberts] in 2020 wrote an opinion where he said, “look, election law is state law and the Supreme Court has been critical of lower federal courts and of Congress’ intervention in state election law.” So he seemed to be pointing in the other direction.

PN: Do you have a prediction?

Shapiro: I don’t think that they’re going to do anything really broad, I think they will try to write something narrow whichever [way] it comes out.