Today, the U.S. Supreme Court heard oral arguments* in Moore v. Harper, a case that could strike a major blow to free and fair elections. At least three justices in the court’s extreme conservative majority signaled their openness to adopting a discredited theory—the independent state legislature (ISL) theory—that could hand partisan state legislators potentially limitless power to manipulate election rules and draw unfair congressional districts. This theory—which even many conservative leaders deem meritless—could upend the nation’s system of checks and balances and undermine the emergence of a truly representative democracy. The Supreme Court would be wise to reject any form of the ISL theory when it issues its decision in this case next year.
As discussed in a recent Center for American Progress report and explored in today’s oral arguments, the ISL theory relies on a recklessly narrow reading of two clauses in the U.S. Constitution to assert that state legislatures—and only state legislatures—have the authority to set election related rules and draw congressional maps. Among others, the Claremont Institute’s John Eastman—the discredited lawyer to former President Donald Trump—is pushing this argument. Eastman’s amicus brief resembles those filed by several interconnected, right-wing organizations that have led an ongoing effort to restrict voting rights and sabotage valid election results.
Today’s arguments and numerous amicus briefs warn of the danger the ISL theory poses to free and fair elections
Today, counsel for the petitioners David Thompson argued unpersuasively that the high court should adopt the ISL theory and send this case back to North Carolina, where legislators should have sole authority to draw congressional maps, unfettered by the state’s constitution or courts. In trying to remain consistent with Supreme Court precedent, the petitioners’ counsel admitted that state legislatures are subject to various state-constitutional procedural requirements but argued that courts cannot set substantive constraints, as he said the North Carolina courts did.
The respondents’ attorneys, Neal Katyal and Donald Verrilli, both former U.S. solicitors general, alongside current Solicitor General Elizabeth Prelogar, cogently argued that the ISL theory would trample on well-established legal precedent and constitutional principles, as described in the overwhelming preponderance of the 69 amicus briefs filed in Moore v. Harper. Counsels explained in these briefs that the standard interpretation of “legislature” over several centuries broadly includes the state’s entire lawmaking process—not only state courts and the parameters of state constitutions, but also the governor’s signature or veto. As counsels stated, the ISL theory could threaten free and fair elections in several ways, including by stopping courts, constitutions, and governors from protecting voters from politicians; making election administration exceptionally chaotic; and pushing a massive wave of litigation into the federal courts.
These arguments echoed the conclusions of a slew of high-profile conservatives who filed amicus briefs arguing against the ISL theory, including state court chief justices, former judges, prominent attorneys, former members of Congress, a co-founder of the Federalist Society, and former U.S. solicitors general. In a recent op-ed published in The Atlantic, conservative stalwart Michael Luttig—a former federal circuit judge who co-wrote a key brief in this case—starkly warned that Moore v. Harper is “the most important case for American democracy in the almost two and a half centuries since America’s founding.” In another op-ed, published in CNN, Luttig wrote that he remains concerned that the ISL theory will be a central part of a future attempt by conservative extremists to steal elections.
Justices appear split on adopting an aggressive form of the ISL theory
Unfortunately, some of the Supreme Court’s conservative justices made clear today* that they are open to adopting the ISL theory in some form, even if not the most aggressive form advanced by petitioners. Even before today’s arguments, at least five justices who have been hostile to voting rights expressed openness to the ISL theory in prior opinions: Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
Today, Justices Thomas, Alito, and Gorsuch seemed the most open to accepting an aggressive form of the ISL theory. A long line of questions revealed their agreement with the petitioners’ counsel that the North Carolina Supreme Court overstepped its authority in reversing the legislature’s maps. Alito also remarked that Congress can act as a check against rogue legislators.
Based on their questions, it is less clear where Chief Justice Roberts and Justices Kavanaugh and Amy Coney Barrett may ultimately land, as they wrestled with several thorny issues. For example, Roberts asked the petitioners’ counsel a series of questions about prior precedent establishing that governors indeed have the right to participate in the lawmaking process, signaling that this precedent undermined the petitioners’ argument—although Roberts also telegraphed the importance of restraining state courts in some circumstances. Roberts, Kavanaugh, and Barrett expressed doubt about adopting an ISL theory that would use a substantive versus procedural test, with Barrett saying these “are difficult lines to draw” and would be hard to judicially manage.
In their questions, the Supreme Court’s mainstream justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—leaned toward following well-settled precedent and a commonsense interpretation of the word “legislature.” For example, Sotomayor said that the petitioners’ counsel was “rewriting history” and remarked that she fundamentally did not understand the petitioners’ legal theory. Kagan stated the Supreme Court clearly has held that state courts and state constitutions typically can constrain state legislatures when they redistrict or pass election-related laws. Importantly, Kagan also pointed out that the petitioners’ claims would harm the foundational system of checks and balances “at a time we need them most.”
Read more about the independent state legislature theory
It is often difficult to read the tea leaves from oral arguments to predict the Supreme Court’s rulings. But if the radical majority of the high court decides to ignore settled precedent and adopt the ISL theory, they would be uprooting the country’s fundamental system of checks and balances, undermining cherished fundamental constitutional rights, and exacerbating political extremism.
*Author’s note: Audio for today’s oral arguments should be available here on December 8, 2022.