The U.S. Supreme Court on Tuesday rejected a fringe, extremist legal theory that would have removed the ability of state courts to review election laws, including congressional maps, and efferctively would have handed state legislatures the ability to decide presidential elections. The “independent state legislature theory” (ISLT) was backed by Donald Trump and some of his top advisors, who promoted what has been called the “fake electors” scheme.
Chief Justice John Roberts wrote the 6-3 majority opinion. Justices Clarence Thomas and Neil Gorsuch were in the minority. Justice Samuel Alito would have ruled the case moot.
“Under the theory advanced by North Carolina’s Republican legislative leaders, but rejected by the court, state lawmakers throughout the country would have had exclusive authority to structure federal elections, subject only to intervention by Congress,” The Washington Post reports. “The ‘independent state legislature theory’ holds that the U.S. Constitution gives that power to lawmakers even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions.”
The Chief Justice in his opinion wrote that the Elections Clause of the U.S. Constitution “does not carve out an exception to that fundamental principle. When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review.”
Back in November, U.S. Senator Sheldon Whitehouse (D-RI), a top proponent of reforming the Supreme Court, warned that the “independent state legislature theory formed the basis of many of the bogus legal challenges to the 2020 election results—including the arguments [Trump attorney John] Eastman was pushing about fake electors.”
On Tuesday, after quickly reviewing the decision in the case, known as Moore v. Harper, some legal experts were rejoicing, at least initially.
“SCOTUS rightly rejected the utterly groundless ‘independent state legislature’ theory that would’ve upended democracy and the rule of law. Only Thomas and Gorsuch went with the theory. Alito would’ve treated the case as moot. It’s [time] to exhale now!” remarked Harvard University Professor Emeritus Laurence Tribe, a top constitutional scholar and former Harvard Law School professor of law.
“This is a rout for proponents of the independent state legislature theory,” wrote Slate’s Mark Joseph Stern.
“In my view,” he added, “the decision in Moore is a huge victory for democracy, ensuring that state courts can continue to review election laws enacted by state legislatures under state constitutions, and that federal courts do not have freewheeling power to meddle in state election schemes.”
Meanwhile, legal journalist Cristian Farias warned the ruling means, “State legislatures can’t do whatever they want, and state courts can police them. But … federal judges can decide if state courts went off the rails in policing state legislatures.”
“This means Bush v. Gore could still happen again,” he adds.
“So yeah, a win for democracy … for now,” Farias continues. “But the Supreme Court leaves wide open what the standard will be when reviewing a state court ruling that, in its judgment, goes too far.”
“In that sense, Moore v. Harper is a boon to voting rights and election lawyers in coming disputes.”
Election Law Blog, founded by election law expert Rick Hasan, published a reserved interpretation of Tuesday’s ruling, warning that the decision offers “zero concrete guidance on where the boundaries are on state court decision-making.”
“The Court endorsed the view — in exceptionally vague terms — that the Constitution prohibits state courts from ‘transgress[ing’ the ordinary bounds of judicial review when they interpret state constitutions, or it seems, state statutes. The Court makes clear that it is not providing any standard at all — even an attempt at a standard — as to what this means concretely.”
“It’s critical that the rules for elections are clear and specified in advance, including the rules that follow from judicial doctrine. The Court’s decision eliminates the most extreme versions of the ISLT, but we are going to see constant litigation around this issue in the 2024 elections until a more clear sense of the boundaries on state court decision-making.”