In an extraordinary and tense debate stretching three hours on Wednesday, the U.S. Supreme Court entertained an unprecedented call to give state legislatures nearly unchecked power to dictate when, where and how Americans vote for president and Congress.
While a majority of justices appeared skeptical of entirely removing state courts from the process of reviewing state election laws, a majority did seem willing to impose new limits on the role judges can play in election policy. There was no clear consensus on scope or approach.
North Carolina Republicans were asking the high court to reinstate a gerrymandered election map drawn by the GOP-controlled state legislature after it was thrown out by the state supreme court for violating the state constitution. A court-appointed panel drew a new map which was used during the 2022 midterm election.
The plaintiffs argue that the U.S. Constitution’s elections clause expressly empowers the state legislature, and legislature alone, to dictate the “time, places and manner” of federal elections — free from substantive review by state courts. The view is based on a fringe theory known as the independent state legislature theory, which the court has never adopted.
“States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function,” argued attorney David Thompson, representing the Republicans.
A group of North Carolina voters and pro-democracy advocates, backed by the Biden administration, opposes the move as contrary to the nation’s history and tradition and has warned that it would invalidate hundreds of election laws in every state.
“The blast radius from their theory would sow elections chaos,” said attorney Neal Katyal, the former Obama administration solicitor general representing the voters. “For 233 years, “This court has never second-guessed a state court interpretation of its own constitution in any context.”
Of the supposed historical underpinning of the theory, Katyal said: “The dog never barked … Not a person said anything like that they were trying to create this strange animal.”
On the left and the right, the justices echoed skepticism of the theory.
“This is a theory with big consequences,” said Justice Elena Kagan. “It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that’s a violation of the constitution. It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution in fact prohibits. It might allow the legislatures to insert themselves, to give them a role, in the certification of elections and the way election results are calculated.”
“This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country, Kagan said. “And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”
Justice Amy Coney Barrett seemed to call out inconsistencies in how the theory would be applied. “You do have a problem explaining why these procedural limitations [i.e. a governor’s veto] are okay, but substantive [i.e. a state court ruling] are not,” she told Thompson.
“We ground it in precedent, your honor, and text and structure and history,” Thompson replied.
Justice Sonia Sotomayor repeatedly sought to poke holes in North Carolina Republicans’ view of the history. “It seems that every answer you give is to get you what you want, but it makes little sense,” she told Thompson.
Justices Samuel Alito, Clarence Thomas and Neil Gorsuch appeared most inclined to embrace a broad application of the independent legislature theory, appearing to side with the Republican challengers.
“The question before us is whether the rule, the time, place and manner regulation has been prescribed by the legislature,” said Justice Neil Gorsuch. He voiced skepticism of a state court saying “we’re not going to enforce the rules of the legislature for any reason.”
Katyal argued that U.S. Constitution’s references to ‘legislature’ were always understood to mean the “lawmaking ‘system,’ subject to constraints.”
“What’s the check on an appointed state supreme court?” quipped Justice Alito, who probed “boundaries” on state courts that might wade into policymaking. “Many state supreme courts are not elected.”
Chief Justice John Roberts followed with concern about the practice of some state courts appointing a special master to draw election maps after a dispute.
“The judges don’t sit in the back room with lines drawing the districts, but other people do,” Roberts said. “And I wonder if there’s a disconnect between the level of the grant of authority…and how it’s actually practiced on the ground.”
But the chief justice stopped short of suggesting there should be no limits, whatsoever, on state lawmakers when it comes to elections. “State legislative action under the Elections Clause is subject to a governor’s veto, right?”
Justice Ketanji Brown Jackson suggested the case against the independent state legislature theory is a simple one. Since a state’s constitution creates the legislature and lays out its power, lawmakers must inherently be subject to the charter’s terms as interpreted by a court.
“What I don’t understand is how you can cut the state constitution out of the equation when it’s giving the state legislature the authority to exercise legislative power,” she said. “It’s the state constitution that is telling the legislature when and under what circumstances it can actually act as the legislature.”
Kagan repeatedly turned the argument back to the big-picture stakes for a country exhausted by partisanship.
“There’s a great deal of sentiment in this country about the problems with extreme partisan gerrymandering,” she said. “And states have responded to that in nonpartisan ways…State constitutions have been amended by the work of the people.”
“In all recent [Supreme Court] cases,” Kagan said, “we’ve said: of course, state courts applying state constitutions typically constrain state legislatures when they redistrict, when they enact election laws…. We’ve understood this to be an established idea of law.”
The court is expected to hand down a decision before the end of June.