A majority of justices on the U.S. Supreme Court expressed skepticism Wednesday toward arguments that state legislatures should be unbound by state constitutions in how they run elections.
Four different attorneys argued on the matter of Moore v. Harper, a dispute between the North Carolina Legislature and the state Supreme Court, over maps for congressional seats that were redrawn last year to reflect new census data.
On its face, the case is about whether the maps are fair or not. The North Carolina Supreme Court ruled this year that the maps were manipulated by the Republican-controlled legislature to give GOP candidates an advantage, and that the maps discriminated against Black voters.
“This is a novel challenge,” Supreme Court Justice Elena Kagan said to David Thompson, an attorney for the North Carolina state legislators. “This is a theory with big consequences.”
But lawyers for the North Carolina Legislature have made an audacious claim in their arguments — that the state courts should not have any role in constraining the legislature when it comes to election law. This has become known as the Independent State Legislature Theory.
Kagan noted that if the court were to rule in favor of the legislature, it would mean there would be little to stop partisan actors from drawing “extreme” gerrymandered maps that favored their party. She also argued that such a ruling could allow state legislatures to obstruct or restrict voting without much recourse for voters, and that legislatures might even “insert themselves into the certification of elections ... and the way election results are calculated.”
This last point has been debated fiercely. Liberal and progressive activists, and some Democratic Party figures such as Hillary Clinton, have claimed that if the court ruled for the North Carolina lawmakers, it would allow any state legislature to overturn an election result it didn’t like.
"Moore v. Harper could let extremist state legislatures disregard the popular vote and choose their preferred presidential candidate. That's not hyperbole," said former Labor Secretary Robert Reich in a tweet that promoted a four-minute video he filmed on the issue.
But in fact it is hyperbole, according to numerous legal experts, some of whom also say that Reich’s claims are outright false.
"Whatever the Court decides in that case will not provide a basis for state legislatures to nullify the popular vote for president in their states after that vote has occurred in November of 2024,"wrote Ned Foley, director of Election Law at Ohio State University.
"Fears of this dire outcome are exaggerated. Those who worry about state legislative rejection of the presidential popular vote may be looking in the wrong direction," wrote Bob Bauer and Jack Goldsmith, two formidable constitutional law experts with extensive experience in government.
Matthew Seligman, a fellow at Stanford University's Constitutional Law Center, has argued that those like Reich are spreading "misinformation" that itself could be used by bad actors to claim that the law gives them the ability to overturn elections when in fact it does not, no matter what the Supreme Court rules in Moore v. Harper.
Seligman and other legal scholars have warned that a broad victory for state legislatures in Moore v. Harper could have "very bad results," but that it would not provide any legal justification for overturning an election.
There are three justices who sounded inclined to favor the ISLT in Wednesday’s arguments: Neil Gorsuch, Samuel Alito and Clarence Thomas. That was not surprising to close observers of the court.
Similarly, three other justices were clearly opposed: Elena Kagan, Sonia Sotomayor Justice Ketanji Brown Jackson.
The three remaining justices — Chief Justice John Roberts, Brett Kavanaugh and Amy Coney Barrett — all expressed varying degrees of skepticism in response to the legislature’s arguments.
Or, at least, they were skeptical of how broadly Thompson, the attorney for the legislature, argued against any state limits on a state legislature when it came to elections.
“They all seemed to be looking for a middle ground, one that would impose some meaningful limits on state supreme court opinions going off the rails in purporting to interpret state constitutions,” wrote Rick Hasen, director of the Safeguarding Democracy Project at UCLA.
“They could well adopt something like Chief Justice [William] Rehnquist’s concurrence in Bush v. Gore: that sometimes a state court goes so far in interpreting a state law (in that case a state statute, in this case a state constitution) applying to federal elections that it becomes unconstitutional,” Hasen wrote.
The court will issue its ruling in the case next year.