A Dangerous Theory Will Have Its Day in the U.S. Supreme Court

When former President Donald Trump launched his post-election assault on democracy, he did not start with violence; he started with courts. Trump and his band of misfit advisors understood that a victory in court would provide a more cosmetically acceptable way to achieve his desired goal of undermining the results of a free and fair election. Before he begged for an election official to “find the votes,” he hoped to find a judge — any judge — who would legitimize his effort.

Fortunately, without exception, the judiciary did its job and protected democracy. Trump and his allies lost more than sixty separate lawsuits in their effort to overturn election results in more than a half dozen states. He lost before federal trial courts and state appeals courts. He lost before elected judges and those who were appointed, including by him. Most importantly, he lost before the U.S. Supreme Court — a court where he nominated three of the nine justices and where conservatives outnumber liberals 6-3.

Democracy has always relied on the judiciary for protection. Left unchecked by the courts, politicians too often tilt the electoral playing field in their favor. History shows that without judicial intervention states will enact discriminatory congressional districts, require literacy tests to vote and prevent members of the military from participating in their elections.

The attacks on our democracy are growing more frequent and more pernicious. Lies are turning into laws as Republican state legislatures are enacting new voter suppression laws to combat fraud that does not exist. Election deniers are being recruited to work and even run our state and local elections. Legal theories to deny the right to vote and subvert election results have moved from the extreme fringe toward the mainstream.

Through it all, we continue to rely on the courts. In our federal system, it often falls on state courts to address the worst of the worst. Armed with the ability to interpret state law and to enforce both federal and state constitutions, state judges are in many instances best positioned to protect our democratic institutions and elections.

That is why so many of us who care about the future of democracy were alarmed to see the Supreme Court agree to consider Moore v. Harper, a North Carolina redistricting case that could shake the foundations of federalism and judicial review and undermine the tools available to protect future elections.

What makes Moore so potentially dangerous is the fact that Republicans are advancing a radical legal theory — the independent state legislature (ISL) theory — that would limit state courts’ ability to interpret their own state’s laws and apply their state’s constitutions to federal elections.

On its face, the Moore case is straightforward.

In 2011, the North Carolina Legislature drew a new congressional map that illegally used race to limit the influence of minority voters in congressional elections. After a federal court struck that map down, the Legislature drew an avowed partisan gerrymander to achieve the same result. When that map was challenged, a divided U.S. Supreme Court held in Rucho v. Common Cause that federal law and the U.S constitution did not provide standards for invalidating partisan gerrymanders. Thus, the map survived federal court review.

Critically, the Court assured voters that this decision would not “condemn complaints about districting to echo into a void.” Chief Justice John Roberts, writing for the conservative majority in 2019, pointed future plaintiffs specifically to state courts to have their concerns addressed: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”

In 2021, North Carolina Republicans again redistricted its congressional maps and again engaged in egregious partisan gerrymandering. This time, taking its cue from the Supreme Court’s ruling in Rucho, plaintiffs sued in North Carolina state court. After significant briefing, expert analysis and testimony, the North Carolina Supreme Court ruled that the map enacted by the Legislature violated the state constitution’s “free and fair elections” clause. The Republican-controlled Legislature then refused to remedy its violation of the state constitution. Instead, its leadership sought Supreme Court review of the decision.

What makes Moore so potentially dangerous is the fact that Republicans are advancing a radical legal theory — the independent state legislature (ISL) theory — that would limit state courts’ ability to interpret their own state’s laws and apply their state’s constitutions to federal elections. The theory rests on the fact that the U.S. Constitution grants state legislatures the ability to set the “time, place and manner” of congressional elections, subject to an override by Congress. A similar provision gives state legislatures the power to set the “manner” of choosing presidential electors.

In Moore, North Carolina Republicans are arguing that power given to the “legislature” is exclusive to the legislature. In its strongest form, it would exclude a governor’s ability to veto an election bill. In the case of North Carolina, Republicans are arguing that it excludes meaningful judicial review by a state court interpreting its own constitution.  

Until recently, the ISL theory was not taken seriously. After all, a bedrock principle of federalism — a tenet of modern conservative legal theory — is that state courts are the ultimate authority on interpreting and applying their state’s laws and constitutions. In addition, stripping or limiting judicial review runs counter to the Supreme Court’s own jurisprudence since Marbury v. Madison.

The concern over ISL is not simply a debate among election lawyers. Adoption of this radical theory would transform the power of legislatures to restrict voting rights and weaken democracy. There is no legal theory that is more connected to Trumpism and the failed Jan. 6 coup than ISL.

In the run up to the November 2020 presidential election, state courts heard and considered dozens of cases involving the application of state election law. As importantly, after the election, Trump and his allies lost 28 lawsuits in state court, nine of which involved the Trump campaign itself. In 2021, at least 39 voting rights and redistricting lawsuits were decided at the state court level.

State courts in Pennsylvania, North Carolina, New Hampshire, Michigan and Montana have played a vital role in protecting the right to vote in free and fair elections. Stripping these courts of the authority to serve as a judicial check on hyper-partisan legislatures will embolden those legislatures to trample on the rights of their citizens and undermine elections. This is what Trump failed to achieve in 2020. An extreme form of the ISL theory is what John Eastman advanced in advising states to disregard the election results. It is not hyperbole to say that the Supreme Court’s decision in Moore may decide whether Eastman, or someone like him, succeeds next time.

Judge Luttig, a measured conservative not known for overstatement recently wrote that “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine.” He is correct. It is that simple. The Court will either empower the likes of Eastman and Trump or it will stand behind the dozens of state court judges who protected our elections in those 28 cases. These are the stakes when the Court considers Moore v. Harper next term. A dangerous theory will have its day in court.