A yet-to-be scheduled case over partisan gerrymandering in North Carolina, Moore v. Harper,
is likely to raise a once-fringe legal doctrine that has gained traction on the right since the 2020 presidential election.
The Supreme Court’s decision could drastically alter the balance of power in federal elections. A partisan miasma hangs over the case, given that Republicans control the legislatures in many swing states.
Known as the independent state legislature theory, the doctrine holds that state legislatures — not state courts or secretaries of state — hold the final say over the rules of federal elections.
Trump’s allies invoked an extreme version of the doctrine to challenge the 2020 results, claiming that certain voting accommodations made by states during the pandemic, like expanding mail-in voting and adding drop boxes, were unlawful — and therefore so was Joe Biden’s victory.
But a more mainstream interpretation has gained purchase on the right, as a
flood of supporting briefs from official Republican Party organs makes clear.
Republican state legislators in North Carolina explicitly invoked the theory in
appealing the case to the Supreme Court. They argued that judges had seized on “vague and abstract state constitutional language requiring ‘free’ or ‘fair’ elections to essentially create their own election code.”
Some on the court appear hungry to rule on the matter.
Thomas, for one, has seemed open to some version of the independent state legislature theory since at least the Bush v. Gore ruling in 2000, in which the doctrine appeared in a concurring opinion. So have Alito and Gorsuch.
Court-watchers are paying especially rapt attention to Kavanaugh, whose musings in other cases have indicated his eagerness to resolve the question for good, and who has said sympathetic things about the doctrine.
As always, Roberts could play a decisive role. Often a cipher, he signaled in 2015 that he took a dim view of liberal arguments on the subject. Dissenting in
a case that upheld an independent redistricting commission in Arizona, Roberts called the majority’s broad definition of the term “legislature” a “deliberate constitutional evasion.”