OPINION ANALYSIS

Supreme Court rules against North Carolina Republicans over election law theory

In a major election-law decision, the Supreme Court ruled on Tuesday that although the Constitution gives state legislatures the power to regulate federal elections, state courts can supervise the legislature’s exercise of that power. By a vote of 6-3, the court rejected the so-called “independent state legislature theory,” holding that the North Carolina Supreme Court did not violate the Constitution when it set aside a congressional map adopted by the state’s legislature.

Justice Clarence Thomas dissented, in an opinion joined by two of his conservative colleagues, Justices Samuel Alito and Neil Gorsuch. Thomas would not have reached the “independent state legislature theory” question at all. Instead, he would have dismissed the case as moot – that is, no longer a live controversy.

The dispute began as a challenge to a congressional map adopted by that state’s Republican-controlled legislature in early November 2021. Democratic voters and non-profits argued that the new map was a partisan gerrymander – that is, it was drawn to favor one political party at another’s expense. In particular, they contended, although the state is roughly divided between Democrats, Republicans, and unaffiliated voters, the new map likely would have given Republicans 10 out of 14 seats in the U.S. House of Representatives.

In 2019, in Rucho v. Common Cause, the Supreme Court ruled that federal courts cannot consider claims of partisan gerrymandering. But the 5-4 decision by Chief Justice John Roberts noted that states could still address partisan gerrymandering in their own laws and constitutions. In February 2022, the North Carolina Supreme Court (which at the time had a 4-3 Democratic majority) ruled that the new map violated a provision in the state constitution guaranteeing free elections. The state supreme court barred the state from using the new map in the 2022 elections, and the trial court later adopted a new map, drawn by Republicans and Democrats split the state’s congressional seats 7-7.

Republican legislators came to the U.S. Supreme Court last year, challenging the state supreme court’s decision. They argued that when it set aside the legislature’s congressional map, the state court violated the “independent state legislature” theory. That theory, which the Supreme Court has never endorsed in a majority opinion, rests on two provisions of the Constitution. In Moore, the legislators point to one of those provisions, Article I’s elections clause, which provides that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Article II’s electors clause provides that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.” These provisions, the theory’s proponents contend, mean that state courts lack the power to supervise how state legislatures run elections for Congress or the president – including, as in this case, the power to set aside congressional powers.

The “independent state legislature” theory first made an appearance at the Supreme Court in a concurring opinion by then-Chief Justice William Rehnquist in Bush v. Gore, the case that halted the recount in Florida in the 2000 presidential election. In an opinion joined by Justices Antonin Scalia and Thomas, Rehnquist contended that the recount ordered by a state court violated the legislature’s authority under the electors clause because it conflicted with the deadlines set by the state legislature.

The theory resurfaced again three years ago, in a challenge by Pennsylvania Republicans to a ruling by the Pennsylvania Supreme Court that – relying on the state constitution – extended the deadline for absentee ballots in the November 2020 elections. The justices rejected the group’s request to fast-track its challenge, but Alito (in an opinion joined by Thomas and Gorsuch) suggested that the extension of the deadline to count ballots likely violated the elections clause.

On Tuesday, a majority of the justices rejected the idea that the independent state legislature theory gives state legislatures broad power over federal elections, without any role for state courts in supervising the exercise of that power.

In an opinion by Roberts that was joined by Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson, the court began with the question of whether it could reach the “independent state legislature” question at all after the North Carolina Supreme Court – which switched to a 5-2 Republican majority as a result of the November 2022 elections – ruled that it does not have the power to review the challenges to the map. The Biden administration and three sets of challengers had urged the justices not to reach the question. But the Republican legislators and Common Cause, another challenger, insisted that the justices should go ahead and decide the “independent state legislature” question despite the North Carolina Supreme Court’s ruling.

Roberts agreed that the court did have the power to decide the case on the merits. Among other things, he explained, the challengers had sought to block the use of the legislature’s 2021 plans. And although the recent North Carolina Supreme Court decision ruled that state courts can no longer consider partisan gerrymandering claims, he continued, the Republican legislators did not (because it was too late) ask the North Carolina Supreme Court to overrule the effect of its earlier decision barring the use of those plans in later elections. Therefore, Roberts reasoned, the Republican legislators still had a stake in the outcome of this proceeding, allowing the court to move forward.

Turning to the independent state legislature theory, Roberts emphasized a long tradition in U.S. history of state courts invalidating laws that violate state constitutions. As the Supreme Court’s cases make clear, Roberts wrote, there is no exception to this tradition for laws relating to elections.

At the same time, Roberts cautioned, “state courts do not have free rein” to strike down state laws governing elections. Because the elections clause gives state legislatures power over governing federal elections, Roberts said, federal courts “have an obligation to ensure that state court interpretations of that law do not evade federal law.”

The court stopped short, however, of outlining a standard for federal courts to use in such cases. Instead, Roberts explained, it held “only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

And because the Republican legislators in this case had not asked the justices to decide whether the North Carolina Supreme Court’s original decision went too far, Roberts noted, the court would not weigh in now.

Kavanaugh, who joined the Roberts opinion, penned his own concurring opinion in which he proposed a standard for federal courts to use in reviewing state courts’ interpretations of state law in election cases. Kavanaugh indicated that he would adopt the “straightforward” test outlined by Rehnquist in Bush v. Gore, which would hinge on whether a “state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required.’”

In his dissenting opinion, Thomas contended that because the recent North Carolina Supreme Court decision resulted in a “straightforward case of mootness,” he would not have reached the independent state legislature theory question at all. “As far as this case is concerned,” he wrote, “there simply is nothing this Court could decide that could make any difference to who wins or what happens next in any lower court.”

But Thomas allowed that he also found the majority’s reasoning on the merits of the case “unpersuasive.” And in particular, he suggested that the ruling “portends serious troubles ahead for the Judiciary” because of the prospect that “the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded ‘the bounds of ordinary judicial review’ in construing the state constitution.”

In a press release issued shortly after the decision was announced, Bob Phillips, the executive director of Common Cause North Carolina, one of the challengers, called the ruling a “historic victory for the people of North Carolina and for American democracy. Today, the Supreme Court made clear that state courts and state constitutions should serve as a critical check against abuses of power by legislators.”

This article was originally published at Howe on the Court.