With the November midterm elections over, there is another looming threat to democracy. On December 7, 2022, the U.S. Supreme Court will hear oral arguments in the blockbuster case Moore v. Harper. In this case, the court’s extreme conservative majority may decide to adopt a lawless theory handing state legislators potentially limitless power to manipulate rules for federal elections while undermining the hallowed right to vote. This fringe independent state legislature (ISL) theory, which even many conservative experts deem meritless, could undermine free and fair elections in several ways, threatening a giant step backward for a truly representative democracy.
As discussed at length in a recent Center for American Progress report, Moore v. Harper involves a challenge to congressional maps drawn by North Carolina’s Republican-controlled legislature. In the state proceedings, the North Carolina Supreme Court threw out the unfair maps, so the rogue politicians appealed to the U.S. Supreme Court. Invoking the ISL theory, which relies on an unreasonably narrow reading of two clauses in the U.S. Constitution, these lawmakers argue that state legislatures—and only state legislatures—have the authority to set election-related rules and draw congressional maps.
The vast majority of constitutional scholars and election law experts agree that the ISL theory is a far-fetched concept that would trample on legal precedent and constitutional principles. They correctly argue that the standard interpretation of “legislature” over several centuries broadly involves the state’s entire lawmaking process, including a governor’s signature or veto, citizen-led ballot initiatives, discretion exercised by election officials, rulings of state courts, and the parameters of state constitutions. Importantly, even high-profile conservative attorneys, judges, and scholars have repudiated the ISL theory.
If adopted, the ISL theory could uproot our fundamental system of checks and balances and put more power in the hands of extreme partisan legislators. Dangerously, at least five sitting Supreme Court justices who have been hostile to voting rights have expressed openness to the ISL theory: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
There are at least nine ways that the ISL theory threatens free and fair elections:
1. Stopping state courts from protecting voters
Judges could lose their power to constrain extremist legislators from passing even more laws to suppress voters of color, unfairly count votes, or sabotage elections. For example, state courts could be prohibited from ruling on early voting rules, as state judges in Georgia recently did.
2. Ending protections against gerrymandering
Partisan legislators from either political party could rig congressional map drawing, entrenching their own power for many years, despite the popular will. In particular, bans on gerrymandering in states such as Arizona, Florida, and Ohio could be nullified.
3. Undoing pro-voter election rules enshrined in state constitutions
In some states, the constitutional right to same-day voter registration (in Michigan), automatic voter registration (in Nevada), and accessible voting places (in New Hampshire) could be on the chopping block.
4. Gutting rules passed by people-powered ballot measures
In states where voters passed ballot initiatives—for example, to allow ranked-choice voting (in Maine) and to set up independent redistricting commissions (in Arizona, California, and Michigan)—partisan legislatures could decide to ignore the popular will.
5. Limiting the discretionary authority of election officials to increase voting access
The ISL theory could prevent state and local election officials from using their discretion during emergencies, as was the case in many states, such as Pennsylvania, during the COVID-19 pandemic in order to give voters wider access to mail voting.
6. Eliminating governors’ veto rights
Governors could lose their undisputed authority to veto extreme anti-voter legislation or unfair congressional maps, a long-standing component of checks and balances. For example, earlier this year, Wisconsin’s governor stopped a wide-ranging package of anti-voter bills and vetoed unfair congressional maps.
7. Making election administration extremely chaotic
Because the ISL theory would not have any effect on the rules governing state elections, different rules for state and federal elections could make it extremely difficult to administer concurrent elections and confuse voters, including on topics such as voter registration, early voting, and voting hours.
8. Reducing people’s right to have their voices heard in state courts
Voters, including long-marginalized communities, could have fewer avenues in state court to challenge unfair election laws and lose further faith in the political system.
9. Placing Congress and the federal courts in the untenable position of being the last constitutional bulwark against rogue state legislatures
Although Congress could theoretically pass baseline standards governing federal elections and binding state legislatures, the repeated failure by Congress to pass federal legislation suggests it may not act, which could subject federal courts to massive litigation requiring interpretation of state election laws.
If the radical conservatives on the Supreme Court adopt the ISL theory, it may provide rocket fuel for fringe politicians to pass sweeping laws preventing fair election rules and responsive congressional maps. Instead, the Supreme Court must reject this legislative lawlessness, put people over political power grabs, and protect Americans’ fundamental rights.