Supreme Court rejects theory of radical independent state legislation

The Supreme Court on Tuesday rejected the radical argument made in the controversial Moore v. Harper case that state legislatures have the sole authority to map congressional districts and set electoral laws.

The independent state legislature’s theory that Republicans in the North Carolina legislature wanted the court to assume presumption asserts that the U.S. Constitution confers solely on the state legislature the power to determine “the time, place, and type” of federal elections. This would not give state courts an opportunity to rule on map rigging or other electoral laws that may violate their respective state’s constitution. State legislatures, often themselves forced to give majority control to one party, would then have a free hand to draft congressional agendas and enact electoral legislation without judicial review.

The court dismissed this theory in one 6-3 decision Authored by Chief Justice John Roberts, affirming the role that state courts must play in evaluating county maps prepared by state legislatures.

Opponents of independent state legislature theory speak before Supreme Court.
Opponents of independent state legislature theory speak before Supreme Court.

Tasos Katopodis via Getty Images

The core of the case revolved around the electoral clause of Article I of the US Constitution. This clause states that “each state’s legislature” has the power to determine “the time, place, and manner” of federal elections within its own borders. Proponents of the independent state legislature theory argued that “the legislature” should be properly defined to mean only the state legislature.

The court rejected that argument, affirming that “the legislature” encompassed all state government, including the courts and the governor.

Liberals and conservatives — from former Attorney General Eric Holder and Democratic Party attorney Marc Elias to retired federal judge Michael Luttig and Federalist Society co-founder Steven Calabresi — opposed the theory’s adoption. They argued that if the court adopted the theory, it could lead to a subversion of democracy and entrenchment of minority rule.

The theory was at the heart of former President Donald Trump’s efforts to redeem his defeat in the 2020 election and led directly to the Jan. 6 riot. Trump turned to the theory of independent state legislatures, arguing that state legislatures could submit competing electoral lists in his favor to Congress before the Jan. 6 vote count. When no legislature did so, Trump and his attorney, John Eastman, tricked Republican voters into submitting bogus lists in an attempt to trick then-Vice President Mike Pence into announcing the result in key disputed states and not counting their votes.

The Moore v. Harper case dealt only with congressional elections and did not directly discuss the possibility of allowing the casting of Electoral College votes solely in the hands of the state legislatures. But if it had succeeded, it would have lent rhetorical weight to future efforts by presidential candidates who lie, claim voter fraud and attempt to steal elections.

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