Five Questions on the Independent State Legislature Theory for Elections Expert Richard Briffault

 On December 7, the Supreme Court will hear oral arguments in Moore v. Harper, a case that tests the ability of a state legislature to draw congressional districts without review by the state’s highest court. Following the 2020 census, the North Carolina Legislature drew a redistricting plan, which the state Supreme Court ruled was a partisan gerrymander in violation of the North Carolina Constitution. Making an argument known as the “independent state legislature theory,” the state legislators say the U.S. Constitution does not allow state judicial review of federal election laws. The case could force a showdown between textualism and federalism, says Richard Briffault, Joseph P. Chamberlain Professor of Legislation and an expert on election law and state law. 

What is the independent state legislature theory that Moore v. Harper is seeking to affirm? 

The independent state legislature theory grows out of the very specific language in the Constitution, in Article I, Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” 

The state legislature writes the rules for the election of members of Congress. 

There’s further language that says that Congress can change those rules: “But the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

But ordinarily, the state legislatures write the rules. 

The theory suggests that when the Constitution says “the legislature,” it means the legislature somehow independent of the rest of state government. The theory is a device designed to limit the ability of state courts, when they interpret state statutes or the state constitution, from imposing constraints or setting aside provisions of state legislation regarding federal elections. 

In other words, if a state court says that something that the state legislature did regarding election law is unconstitutional under the state constitution, only the Supreme Court can reverse that and strike it down.

The response is that legislatures don’t exist outside of the full structure of state government, including the state constitutions that set them up and authorize them, which also includes state Supreme Courts. 

However, the current Supreme Court gives a lot of weight to the literal constitutional text. They might make the point that in other places in the Constitution, it talks about “the states,” And here it talks about “the legislature.” That might mean only that the Founders wanted to make sure it was the legislature, not the governor, that acted for the state with respect to federal elections. But the text does say the legislature. 

If the Supreme Court rules in favor of preventing state judicial review of federal election laws, what would the implications be? 

The decision would affect the role of state Supreme Courts in reviewing, under state constitutions, state legislative redistricting of congressional districts. 

The short-term political goal [of supporters of the independent state legislature theory] reflects the fact that many state legislatures are gerrymandered, and this allows those gerrymandered legislatures to, in turn, gerrymander the congressional delegations. The U.S. Supreme Court has said [in Rucho v. Common Cause in 2019] that there is no federal constitutional constraint on gerrymandering. 

A number of state constitutions and a number of state Supreme Courts have pursued constraints on gerrymandering. A handful of state constitutions have very specific constraints on partisan gerrymandering. But other state constitutions, like North Carolina’s, have fairly general provisions. They use language like “free and fair” or “free and equal” elections. These state courts have read the requirement that an election be “free” as a prohibition on partisan gerrymandering. 

Another question is how would the ruling impact state-level reforms of congressional redistricting, whether by independent commissions or by state Supreme Courts.

In 2015, the Supreme Court said that Arizona’s Independent Redistricting Commission, which was created by a ballot initiative, is constitutional. The court ruled that when the state constitution authorizes the voters to initiate state constitutional amendments, the voters are acting as the “legislature” within the meaning of the Elections Clause and so can give redistricting to an independent commission. One question is, what will be the significance of that case for this case? Conversely, if Moore v. Harper upholds the independent state legislature theory, will that lead to the overturning of the 2015 approval of the creation of independent commissions for redistricting? Twenty-four states have voter initiatives, and the movement to move redistricting out of legislatures primarily comes from those states.

Another issue is more general: To what extent does this theory implicate state court review of state election laws when they impact federal elections? The vast majority of election laws affect federal elections and state elections simultaneously: Can you vote absentee? Can you vote early? What are the procedures for getting an absentee ballot? How early is early voting? What are the voter ID requirements? The answers to these questions are currently the same for both federal and state elections. What would happen if a state Supreme Court said that some state law on this matter violates the state constitution? Would it apply only to state elections or to state and federal elections? Would we actually have different laws for the same elections that are being held on the same day? 

It is very hard to imagine how that would work. But that is an implication of the independent state legislature theory, which is why it’s so troubling. 

Where did the independent state legislature theory come from? 

It was first voiced in 2000 in Bush v. Gore, which involved the U.S. Supreme Court reversing a decision of the Florida Supreme Court directing the holding of a statewide recount. Justices Rehnquist, Scalia, and Thomas, in a separate concurring opinion—relying on Article II, which has similar language to Article I in dealing with the election of the presidential electors—said that the U.S. Constitution gave the role of writing the rules for the election of electors to the state legislature and that what the Florida Supreme Court was doing in ordering the recount went beyond that in interpreting Florida’s election law.

 The theory came up several times in the 2020 election, again primarily focused on the presidential election and Article II. The argument was made in several cases that various state courts, in attempting to deal with the emergency created by COVID and delays with the U.S. Postal Service, were issuing injunctions modifying some of the state legislative requirements affecting voting, especially with respect to absentee ballots. In effect, proponents of the theory claimed that when state courts relied on state constitutions or interpreted state laws in light of the pandemic to make it easier for voters to get absentee ballots or to return them later than the law provided, these state courts were violating the Elections Clause. 

Why did the court agree to hear the case? 

In the 2020 cycle, several members of the court—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—expressed interest in this idea. It appeals to the extreme textualist argument. Legislature means legislature. 

One of the ironies is that one point Chief Justice Roberts made in Rucho is that states are looking into partisan gerrymandering: He cited the actions of state independent redistricting commissions and state courts in dealing with redistricting. So Moore v. Harper presents an interesting problem for him. I think he had independent reasons for saying why the federal courts can’t intervene—but maybe as a way of ameliorating the consequences, he said, you know, the Supreme Court’s refusal to hear challenges to partisan gerrymandering is not so bad because some of the states are addressing it. 

The theory raises a real tension between extreme literalism and federalism because the real targets of the theory are state Supreme Courts. They’re the entities—and state constitutions too—that would be cut out of the review of state election laws.

There are many different ways this case could come out. The court could say that federal courts can review state court decisions applying state constitutions and laws to federal elections, but they should be deferential. They could take seriously state constitution provisions that explicitly address partisan gerrymandering. Or not.

We’re in a big unknown area, and the Supreme Court could wade in deeply. Or the Supreme Court could wade in narrowly. 

Is the potential loss of state court judicial review of federal elections law a threat to democracy?

This is more in the nature of taking away a defense of democracy. If we weren’t so worried about state legislatures, this court decision would matter less. But I think it’s the potential loss of an important defensive weapon against state legislative abuses. 

This interview has been edited and condensed.