Supreme Court rejects GOP claim that state lawmakers have full power over elections

In another surprise ruling, the Supreme Court on Tuesday firmly rejected a Republican claim that the Constitution gives state lawmakers full and unchecked power over the elections of members of Congress and the president in their state.

The so-called independent state legislature theory had alarmed Democrats and threatened to inject an element of uncertainty into the 2024 national elections.

Some feared that the theory — if given a green light by the solidly conservative Supreme Court — would allow partisan lawmakers to defy voters’ wishes and choose a slate of presidential electors to vote for their preferred candidate, even if that person lost the popular vote in their state.

Instead, a majority of justices — both conservative and liberal — voted to maintain the traditional system of checks and balances.

The 6-3 decision in Moore vs. Harper, written by Chief Justice John G. Roberts Jr., dismissed the GOP claim of state legislature supremacy and said state judges retain a crucial role in overseeing elections.

“When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review,” he wrote. “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the elections clause.”

Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson joined his opinion.

Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.

They said the case should have been dismissed as moot because the North Carolina Supreme Court had changed directions on gerrymandering. Such a ruling would have left the rules for the 2024 election uncertain.

The majority decision will make it harder for the dominant political party in a state to gerrymander district voting maps to lock in control of most of the seats. And it will cut off claims that state lawmakers are free to override state courts in setting the rules for casting votes and counting ballots.

Democrats were surprised and cheered by the outcome.

“By rejecting the independent state legislature theory, the Supreme Court preserved the vital role state courts play in protecting free elections and fair maps for the American people,” said former Atty. Gen. Eric H. Holder Jr., who leads the National Redistricting Foundation. “This is a victory for our system of checks and balances, the cornerstone of American democracy.”

Usually disputes over a state‘s election laws are resolved by state judges and the state supreme court. Until recently, it was understood that the state supreme court had the final word on state laws.

But Republican lawmakers argued that the U.S. Constitution sets a different rule for elections of federal officials. They pointed to the clause that says the “Times, Places and Manner” of electing senators and representatives “shall be prescribed in each State by the Legislature thereof.”

Citing this provision, they argued that state supreme courts did not have the authority to overrule election rules set by state lawmakers. This was the basis of the independent state legislature theory.

The theory had roots in the Bush vs. Gore decision that ended the presidential vote recount in Florida in December 2000 and made George W. Bush the winner. Then-Chief Justice William H. Rehnquist wrote a concurring opinion stating that the high court would take an “independent” and even skeptical view of state court rulings that appeared to change the state’s elections laws.

Since Roberts had earlier served as a law clerk to Rehnquist, and Kavanaugh and Barrett worked as lawyers on Bush’s team in Florida, many thought the three of them would lean in favor of the independent legislature theory. Instead, they cast key votes to reject it.

Roberts pointed to history as well as law. From the nation’s beginning, it has been understood that state supreme courts have the authority to enforce their own state constitutions, he said.

While the case before the court involved states’ voting maps for electing members of Congress, the Constitution has a similar provision that gives legislatures a prime role in electing the president. It says “each state shall appoint” the electors who choose the president “in such manner as the Legislature may direct.”

All the states have adopted laws that say their electors will be chosen based on the outcome of the popular vote in the state.

But after President Trump lost his reelection bid to Joe Biden in 2020, he and some of his supporters urged Republican state lawmakers to defy the law and appoint electors for Trump, not Biden. None did so, however.

Democrats and many election law experts voiced alarm that if the Supreme Court upheld the Republicans’ claim that state legislatures had independent authority over elections, GOP lawmakers might select a slate of Republican electors even if the Democratic candidate prevailed in a close race.

The issue came before the Supreme Court last year in a dispute over partisan gerrymandering by Republican state legislators in North Carolina. They drew a voting map that would have given the GOP a clear edge in 10 of the state’s 14 districts for electing U.S. representatives.

The government watchdog group Common Cause sued and argued the map was highly partisan and did not fairly reflect the state’s political makeup. They won before the state Supreme Court, which then had a 4-3 majority of Democratic appointees. Those judges said the state constitution promised free and fair elections, and they ordered a new map for the 2022 midterm elections. Under that map, the state elected seven Republicans and seven Democrats to the House.

But the state’s Republican leaders appealed to the U.S. Supreme Court and argued that the state judges did not have the authority to override the Legislature and impose their own map for electing members of Congress.

The high court agreed to hear their appeal, and the justices sounded closely split when they heard arguments in December.

But the month before, Republicans had won two seats on the state Supreme Court, giving them a 5-2 majority. Shortly afterward, the new majority announced it would reconsider the anti-gerrymandering ruling that had infuriated the GOP lawmakers.

On April 28, the state court overturned the earlier ruling and said state lawmakers were entirely free to draw election districts to give their party an advantage. The vote was 5-2.

On Tuesday, Roberts said the U.S. Supreme Court retained the jurisdiction to decide the underlying issue, which could prove significant in future election law disputes.