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Supreme Court Unpersuaded by the Independent State Legislature Theory

The justices rejected a reading of the Constitution that would have given state legislatures largely unchecked power over federal elections.

By Susan Frederick  |  June 27, 2023

In Moore v. Harper, the Supreme Court rejected the independent state legislature theory, holding that “state courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause.” Chief Justice John Roberts wrote the 6-3 opinion for the majority. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

After the North Carolina Legislature redistricted in 2021, voting organizations and individual voters challenged the lawmakers’ new voting maps in state court, alleging they were an impermissible partisan gerrymander favoring Republicans. The North Carolina Supreme Court agreed, holding that the Legislature engaged in partisan gerrymandering, which violated numerous provisions of the state constitution, including North Carolina’s “free elections” clause. That didn’t settle the case, however.

In the November 2022 midterm elections, North Carolina’s Supreme Court flipped from Democratic to Republican control. The newly constituted court granted a motion to rehear the case and overruled its prior decision in March. Between the court’s change in partisan control and its reversal of its prior ruling, the U.S. Supreme Court agreed to take the case and heard oral argument in December.

The justices rejected the independent state legislature theory, saying that “since early in our nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts.”

The justices had to decide two issues in this case: whether the case was now moot because the North Carolina court overruled the opinion that was the subject of the appeal to the Supreme Court; and whether the Constitution’s elections clause gives state legislatures exclusive authority to set the rules regarding federal elections—authority that would bar the North Carolina Supreme Court from reviewing the Legislature’s congressional districting plans for compliance with state law. The latter argument relies on what is known as the independent state legislature theory.

The justices ruled that they did have jurisdiction to hear the case, stating that under the cases and controversies clause in Article 3, Section 2 of the Constitution, a live controversy as to partisan gerrymandering, still existed. They reasoned that, while the North Carolina Supreme Court in the first Harper decision struck down the state’s 2021 voting maps for partisan gerrymandering, the court’s second Harper decision only looked at the ability of a court to address claims of gerrymandering under the North Carolina Constitution—not whether the actual 2021 maps were the result of gerrymandering. The justices concluded that the use of the 2021 maps was still at issue because if they were to reverse the North Carolina Supreme Court’s first decision, the 2021 maps would be reinstated and the partisan gerrymander claim would still exist.

Thomas, writing for the dissent, argued that the case should have been dismissed because a state court had ruled on all claims, leaving no controversy to resolve.

The justices then turned to the second issue of whether the Constitution’s elections clause insulates state legislatures from judicial review of compliance with state laws, which is the crux of the independent state legislature theory. The elections clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” The plaintiffs, invoking the independent state legislature theory, argued that state courts can review issues of process, such as presentment of a bill to a governor, but they cannot review issues of substance, such as the constitutionality of a redistricting plan, even if that plan is alleged to violate the state’s own constitution.

The justices rejected the independent state legislature theory, saying that “since early in our nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts.” They noted that even before the Constitutional Convention of 1787, state courts were placing limits on state legislative actions. These early court actions were the precursor to, and laid the foundation for, judicial review. The elections clause “does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote.

The court reasoned that judicial review is a fundamental principle of our constitutional system, and state legislatures are bound by their constitutions when exercising authority under the elections clause.

Susan Parnas Frederick is the senior federal affairs counsel for NCSL.

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