Discover more from Slow Boring
Independent state legislature theory, explained
The legal doctrine, rejected by the Supreme Court, posed a far-reaching threat to American democracy
This piece was originally published by Milan the Researcher on September 17, 2022. The Supreme Court ruled in Moore v. Harper this week, holding that the independent state legislature doctrine was not good law. We’re re-running this article, with some updates in light of the decision, to provide context on the legal question at hand for our readers. Enjoy!
On June 27, the Supreme Court ruled in Moore v. Harper, a case concerning redistricting in North Carolina. The question in Moore was whether the North Carolina Supreme Court has the authority to redraw the state’s congressional maps.
Here is the context of this case: Following the 2020 Census, North Carolina gained a House seat and had to redraw its congressional districts. In 2021, the General Assembly passed a map that would have given the GOP an edge in 10 of the state’s 14 congressional districts. On March 21, 2021, the state Supreme Court voted 4-3 on party lines (it then had a Democratic majority) to reject the legislature’s map on the grounds that it violated anti-gerrymandering provisions of the North Carolina constitution by giving an unfair advantage to Republicans and put a new, temporary map in place for the midterms.
The legislature sued, arguing that the state Supreme Court overstepped its mandate in redrawing the maps under a proposed legal doctrine known as the “independent state legislature theory.” In 2022, Republicans won a 5-2 majority on the North Carolina Supreme Court, which then reversed its prior decision striking down the Republican gerrymander. That makes a GOP-friendly redraw likely; even without independent state legislature theory, Republicans now hold supermajorities in the North Carolina legislature and can override Governor Roy Cooper’s veto. (The Supreme Court’s decision in Allen v. Milligan, a separate voting rights case where the justices ruled in favor of plaintiffs alleging that Alabama’s congressional maps discriminated against Black voters, may limit how far North Carolina Republicans go.)
The idea that state courts cannot enforce their own constitutions when it comes to election law is ahistorical, repudiated by precedent, and violates the spirit of federalism. The Court was right to firmly reject it. The specific situation in North Carolina might have been mooted, but if upheld, the legal doctrine in question would have set the stage for a country of “elections in reverse” — politicians picking their voters instead of the other way around — and legislative majorities gerrymandered into power insulating themselves from democratic accountability.
What is “independent state legislature theory”?
In a nutshell, the idea is that state legislatures have sole authority over federal election-related matters. ISL fans cite two parts of the United States Constitution supporting their position. The first is Article I, Section 4, Clause 1, referred to as the Elections Clause, which reads as follows (emphasis added):
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 chusing Senators.
The second section is Article II, Section 1, Clause 2 — the Electors Clause — which reads as follows (again, emphasis added):
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Proponents of ISL argue that the phrase “the Legislature thereof” means strictly the state legislature — not the governor, not an independent commission, not the state judiciary — gets to decide how elections are run and how presidential electors are appointed, no ifs, ands, or buts. Furthermore, the argument goes that in the event of a dispute between the legislature’s actions and the state constitution, the results of a ballot initiative, state courts, or other elected officials, the matter is to be resolved by federal courts in favor of the legislature.
ISL is ahistorical and incompatible with both federalism and precedent
In a recent article published in the Supreme Court Review, law professors Akhil Reed Amar of Yale and Vikram David Amarof the University of Illinois levied three main criticisms of ISL.
First, the professors object on originalist grounds, arguing that ISL’s reading of the Constitution is ahistorical. After all, what does “legislature” mean, exactly? Well, the easy answer is “a body that passes legislation,” but that definition raises further questions. Does it include a governor’s legislative veto? What about an independent commission created to handle redistricting, or a successful ballot initiative to change election laws? And at the Founding, was a legislature considered to be constrained and limited by the state constitution, or was it an independent body separate and above the charter, as in the British system of parliamentary supremacy?
To quote the Professors Amar (emphasis theirs):
In fact, the public meaning of state “legislature” was clear and well accepted at the Founding: A state’s “legislature” was not just an entity created to represent the people; it was an entity created and constrained by the state constitution.
They note that the federal Constitution was based on the six state constitutions in place at the time, several of which allowed for bodies other than the legislature to regulate elections. Of those state constitutions, one (Delaware) explicitly regulated elections for federal office, and two others (Massachusetts and New York) provided for gubernatorial review and veto of election-related legislation.
The Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) is another argument against the idea that state legislatures are not bound by state constitutions.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
The key thing here is that the order in which each type of law is listed matters, with those mentioned first having priority over those listed next — for example, the Constitution limits what kind of laws Congress may pass, and federal laws may limit what kind of laws states may pass — an interpretation supported by Chief Justice John Marshall in Marbury v. Madison.
The second argument is that ISL is incompatible with Supreme Court precedent, both past and recent. In 1916, the Court heard Ohio ex rel. Davis v. Hildebrant, a case concerning congressional redistricting in the Buckeye State. The Ohio constitution vested legislative power in the General Assembly as well as the referendum process, and voters chose to overturn the redistricting bill passed by the legislature. A different case, Smiley v. Holm (1932), involved the governor of Minnesota vetoing a new congressional map passed by both houses of the state legislature, which then sued on ISL grounds, arguing that the Elections Clause did not require the governor’s signature to approve the new map. In both cases, the Court ruled against ISL arguments, greenlighting the involvement of gubernatorial vetos and ballot referendums in congressional redistricting.
In 2015, the Supreme Court heard Arizona State Legislature v. Arizona Independent Redistricting Commission. In 2000, Arizona voters passed Prop 106, a constitutional amendment that created the Arizona Independent Redistricting Commission (AIRC) to prevent gerrymandering. The legislature sued, arguing that the creation of the AIRC violated the Elections Clause by taking away their power to redraw the congressional maps. In a 5-4 ruling, the Court upheld the creation of the AIRC, with the late Justice Ginsburg citing Hildebrant and Smiley in her majority opinion. Chief Justice Roberts dissented, joined by Alito, Scalia, and Thomas, arguing that the word “legislature” in the Elections Clause ought to be defined narrowly, as ISL argues.
In Rucho v. Common Cause (2019), a case where petitioners asked the Supreme Court to overturn North Carolina’s 2016 congressional map as an unconstitutional gerrymander, the majority ruled that partisan gerrymandering was a political question beyond the reach of federal courts. Robert’s majority opinion — joined by the other four conservatives who dissented in AIRC — explicitly noted that state supreme courts could rule on redistricting cases in direct contravention of ISL.
Finally, the Amars argue that ISL is anti-federalism. The landmark case Erie Railroad Co. v. Tompkins (1932) holds that state, not federal, courts are the final arbiters and interpreters of state law and state constitutions. While state courts certainly may issue bad decisions and misinterpret state legislation, there’s no reason to believe that they are more likely to do so than federal courts — if anything, the opposite is true. Under ISL, state courts would be stripped of their jurisdiction to interpret state statutes and constitutions.
How did the Supreme Court rule?
Most importantly, the justices rejected ISL. The ruling was 6-3, with John Roberts writing for the majority, and Thomas, Alito, and Gorsuch dissenting. You can read all of the opinions here.
Roberts’ ruling, signed by Sotomayor, Kagan, Barrett, and Jackson, straightforwardly rejected ISL. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” the chief justice wrote. Brett Kavanaugh penned a brief concurrence — “I join the Court’s opinion in full” — but added some commentary on what standard federal courts ought to abide by when conducting oversight of state court decisions on elections cases. Kavanaugh outlined three standards — two advanced by William Rehnquist and David Souter in Bush v. Gore, one advanced by U.S. Solicitor General Elizabeth Prelogar in Moore — and concluded that “all three standards convey essentially the same point: Federal court review of a state court’s interpretation of state law in a federal election case should be deferential, but deference is not abdication.”
Thomas’ dissent was joined in full by Gorsuch and in part by Alito.Thomas argued that since Republicans had flipped the North Carolina Supreme Court and rescinded the prior ruling invalidating the legislature’s maps, the case was moot. “As a corollary of that basic constitutional principle,” Thomas wrote, “the Court ‘is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.’” With the original ruling overturned, nobody could claim injury, so nobody had the standing to sue anymore. Alito joined just this part of Thomas’ dissent, agreeing that “the question presented is moot, and the writ of certiorari should be dismissed.” But Thomas goes further in his opinion, arguing that perhaps ISL might have some merit to it and that the majority did not properly consider the legal question at hand.
(I am not a lawyer, and needless to say, this is not legal advice. For those interested in the details of the ruling, I highly recommend reading Adam Liptak’s writeup of the decision for the New York Times.)
What might ISL have meant in practice?
That was a lot of ink spilled on the theory of ISL, but let’s turn to how it might have worked in the real world.
Astute readers may know that the tipping point statein both the 2016 and 2020 presidential elections was Wisconsin. So what could have happened in 2024 if the Supreme Court had ruled in favor of the North Carolina General Assembly in Moore? In 2022, Tony Evers won re-election and the Republicans maintained control of the Wisconsin State Assembly, so there are three possible scenarios for 2024:
We end up in a recession and Donald Trump wins Wisconsin fair and square.
The Federal Reserve gets inflation under control, the job market is roaring, and Joe Biden wins Wisconsin by a large enough margin on his way to a second term that nobody seriously questions his victory.
The results are close but it appears that Biden narrowly carries the state; Republicans cry foul, claiming the election was stolen, and urge the legislature to assign the state’s electoral votes to their candidate.
To be very clear, it’s most likely that either (1) or (2) comes to pass. But if (3) occurred and ISL had been approved by the Court, then we would be in a situation where the Wisconsin legislature (meaning Robin Vos) has sole authority over how elections are run in Wisconsin — including the authority to appoint the electors of their choosing, regardless of who won more votes. The democratically elected governor would not have been able to intervene; neither would the elected justices on the Wisconsin Supreme Court, nor the voters of Wisconsin via ballot initiative. Oh, and state legislative leaders would also have had de facto unilateral control over congressional redistricting, opening the door to even more gerrymandering.
Speaking of gerrymandering, good luck checking a hypothetically over-active state legislature at the ballot box on your own.
Here, you might point out that during the midterms, Democrats did in fact flip the Pennsylvania state house and the Michigan Senate. But the reason Democrats were able to break the gerrymanders was that non-legislative bodies struck down the old maps. In Pennsylvania, the state supreme court struck down gerrymandered congressional maps in 2018; in early 2022, a state panel redrew the state legislative maps. (It also didn’t hurt that Gov. Josh Shapiro beat Doug Mastriano, a far-right Republican state senator, by 17 points.) In 2018, Michigan voters passed a ballot initiative creating a nonpartisan redistricting commission to redraw the maps. Absent intervention from courts and special panels, it is much less likely that Democrats would have been able to translate their popular-vote majorities into legislative ones.
What happens next
The primary impact of this ruling is that it will not overturn the status quo of election law. Governors will still be able to veto bills. Independent redistricting commissions remain legal. State courts can strike down laws that violate state constitutions.
Less abstractly, Democratic-controlled courts will be able to redraw maps in New York and Wisconsin. In New York, that will likely mean less-fair maps. Andrew Cuomo appointed a bunch of conservative judges to the state supreme court, who ended up striking down Kathy Hochul’s aggressive gerrymander of New York’s congressional districts. The court’s new 4-3 liberal majority will likely allow her and Albany Democrats to go ahead with that plan, paving the way for a map where 22 out of 26 House districts lean blue.
In Wisconsin, that will mean nothing less than the restoration of democracy. The Wisconsin legislature is the poster child for gerrymandering: Despite Democrats winning the popular vote in a landslide in 2018, Republicans won a near-supermajority of the seats. Tony Evers won re-election by 3 points in 2022, but Republicans came within one seat of a supermajority. Janet Protasiewicz’s victory in April’s race for the deciding seat on the Wisconsin Supreme Court changes all of that. She ran on a promise to overturn the state’s 1849 abortion ban and redraw the maps, and the Supreme Court’s ruling in Moore clears the way for the new liberal majority to draw fair maps for the first time in over a decade.
But that doesn’t mean that the fight against gerrymandering is over — far from it. As the situation in New York and North Carolina shows, we can’t rely on state courts to do the right thing. Judges leave office, and new majorities might roll back pro-democracy rulings that their predecessors put in place. If we want fair maps, then here are some steps we can take.
First, media outlets ought to increase their coverage of the speakers and Senate presidents who hold real power in state legislatures, especially with regard to election legislation and confirming judges who might rule on election laws.
Second, we can tackle partisan gerrymandering at the state level. If you live in a state that doesn’t have one already, then fighting to implement a Michigan-style independent redistricting commission will be critical to keeping elections competitive and holding state legislators accountable to the will of the people. Where does your state legislator stand on this issue? Do they support independent commissions? If you don’t know, call or email their office and find out! And if they don’t, remember that when they’re up for re-election.
Of course, the problem with tackling gerrymandering on a state-by-state basis is that it creates a prisoner’s dilemma. Neither party wants to unilaterally disarm, so the incentive is for everyone to gerrymander as much as possible in the states they control. But that leads to outcomes that most people find antithetical to our core democratic values (“Government of the people, by the people, for the people.”) What’s needed is a federal solution: a national ban on gerrymandering. That’s easier said than done, though. There are many different proposals for drawing fair maps under a first-past-the-post electoral system, and many incumbent members of Congress who owe their seats to gerrymandering would be reluctant, to say the least, to reform the system. But it’s a fight worth having.
Democracy — real democracy, where officials are selected in free and fair elections, and then allowed to govern and face the electoral consequences of their decisions — is important. My grandparents were born in a colony, subjects of the British Empire. My parents were born citizens of an independent India that guaranteed universal suffrage from the moment of its founding in 1947. The country of my birth, the United States of America, did not extend the ballot to all its citizens until 1965. Our right to vote, our voice in the system, wasn’t given. It was hard-won. Do not let politicians take it away from us for short-term partisan gain.
Yes, the two are related: they’re brothers.
At press time, it remained unclear if Tim Moore had paid for luxury travel for Justices Thomas and Alito.
Not counting faithless electors in 2016.
On paper, under ISL either party could have used the legislature to overturn the results of a presidential election. But given the “Stop the Steal” movement, it was much more likely, in practice to have been the GOP, at least in 2024.