Breaking Down the Supreme Court’s Opinion Rejecting a Fringe, Undemocratic Theory

In December 2022, the U.S. Supreme Court heard oral argument in Moore v. Harper, a case about congressional redistricting out of North Carolina. After the state Supreme Court struck down a map passed in 2021 for being a partisan gerrymander, Speaker of the North Carolina House of Representatives Tim Moore (R) and other legislators appealed to the nation’s highest court, invoking the fringe independent state legislature (ISL) theory to argue that the state court violated the U.S. Constitution’s Elections Clause when it overturned the map. According to these legislators, the Elections Clause gives state legislatures special authority to set federal election rules, free from restraints from state courts and even the state constitution. 

Today, the Court rejected the Tar Heel State Republicans’ argument, ruling in a 6-3 decision that state legislatures aren’t free to draw congressional maps free from judicial review by the state courts or constraints imposed by the state constitution. In doing so, the Court turned back a major threat to American democracy that could have upended elections across the country.

The majority emphatically rejected the ISL theory, pointing to both history and precedent.

In the majority opinion, authored by Chief Justice John Roberts and joined by Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson, the Court held that “[s]tate courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause.” (The Elections Clause is the section of the U.S. Constitution that grants state legislatures the power to regulate congressional elections.) Accordingly, there was nothing unconstitutional about the North Carolina Supreme Court’s decision to overturn the 2021 congressional map.

Roberts began by noting the long history of judicial review, the process by which courts review laws for compliance with constitutions. The Supreme Court’s 1803 decision in Marbury v. Madison established that federal courts could overturn laws for violating the federal constitution, but Marbury was predated by multiple state court rulings that provided a model for the Founding Fathers when they crafted the U.S. Constitution. As a result, Marbury held that “the idea that courts may review legislative action was so ‘long and well established’…that Chief Justice Marshall referred to judicial review as ‘one of the fundamental principles of our society.’’’

At its core, Moore asked whether “the Elections Clause carves out an exception to this basic principle.” The majority held that it does not, first pointing to a series of cases — including the Supreme Court’s 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission — that each reject “the contention that the Elections Clause vests state legislatures with exclusive and independent authority.” In federal elections, state legislatures “act[] both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.”

The majority also rejected an argument advanced both during oral argument and in Justice Clarence Thomas’ dissent that tries to grapple with those past precedents by arguing that procedural constraints are permissible while substantive constraints are not. The argument suggested a governor’s veto or the decision to play redistricting authority in a commission are procedural, and the “precedents have nothing to say” about substantive constraints. However, Thomas and the Republican legislators “do not…offer a defensible line between procedure and substance.” The opinion noted that “[p]rocedure, after all, is often used as a vehicle to achieve substantive ends.”

Finally, the majority pointed to historical practice to support its reasoning. Multiple states had constitutions that regulated federal elections at the beginning of the nation’s history. Additionally, language similar to the Elections Clause existed in the Articles of Confederation, yet many states regulated the appointment of delegates in their constitutions, “suggesting that the Framers did not understand that language to insulate state legislative action from state constitutional provisions.” As a result, the U.S. Constitution should be understood to mean that state legislatures must follow their state constitutions when writing election laws.

The ruling allows state courts to continue enforcing state constitutions against state legislatures.

As a result of all these factors, the Court rejected the ISL theory, and upheld the ability of state courts to review congressional maps and laws regulating federal elections. This is a major victory for voting rights and democracy, as many state constitutions have much more explicit protections for voting than the U.S. Constitution. Additionally, due to the U.S. Supreme Court’s 2019 ruling in Rucho v. Common Cause, state courts are one of the only avenues available to protect against partisan gerrymandering. The adoption of the ISL theory would have jeopardized these protections.

Democracy Docket is currently tracking 28 ongoing cases challenging congressional maps or voting laws under state law or state constitutions. In light of today’s decision, these cases will continue in court unimpeded by the ISL theory.

Other vital tools preserved by the ruling include the ability of voters to pass election laws via ballot measures, as voters in Michigan did last year, as well as the use of independent commissions in redistricting, which nine states currently have.

The ruling does leave the door open for future litigation.

While the Court concluded that “the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law,” it also noted that “state courts do not have free rein.” The opinion warns that state courts could “read state law in such a manner as to circumvent federal constitutional provisions.” In such cases, federal courts may be required to step in and overturn state court action.

However, the majority declined to provide a test or rule to determine when such intervention would be necessary and instead simply held that “state courts may not…exceed the bounds of ordinary judicial review.” In his concurring opinion, Kavanaugh wrote that in the future, “the Court should and presumably will distill that general principle into a more specific standard.” As a result, we can expect to see future election law litigation over this precise question and such a case is likely to end up at the Supreme Court some day. 

Nevertheless, by allowing state courts to continue imposing necessary checks on state legislatures and affirming that state legislatures are bound by state constitutions, the Court’s rejection of the ISL theory in Moore preserves one of the most critical foundations of our democracy.