On June 27, 2023, the U.S. Supreme Court issued its highly anticipated decision in Moore v. Harper, one of the most important democracy cases in the nation’s history. Chief Justice John Roberts, writing for a 6-3 majority, rejected a maximalist interpretation of the so-called independent state legislature (ISL) theory, repudiating the reckless notion that state legislatures can enact federal election laws without any checks and balances.
As the Center for American Progress discussed in a prior report, a series of articles, and a video, if the high court had ignored precedent and adopted a broad version of the discredited ISL theory, it would have empowered partisan state legislatures to pass—without restrictions—laws subverting elections or drawing gerrymandered congressional districts to lock in perpetual political power, against the will of voters. During a Supreme Court term that produced extreme and unfair decisions in numerous policy areas, Moore v. Harper strikes a solid victory for a system of free and fair elections.
Even though the Supreme Court jettisoned a sweeping version of the ISL theory to the dustbin of history, the post-Moore v. Harper path is not without some degree of risk.
Yet even though the Supreme Court jettisoned a sweeping version of the ISL theory to the dustbin of history, the post-Moore v. Harper path is not without some degree of risk. For reasons addressed below, the Supreme Court majority creates the possibility that partisan state legislatures will seek relief in federal courts that are willing to reverse pro-voter state court decisions governing federal elections.
The Moore v. Harper case began in North Carolina in late 2021, when a group of voters challenged new gerrymandered congressional maps drawn by the Republican-controlled state legislature. In February 2022, the North Carolina Supreme Court determined that the legislators created the maps for unfair partisan advantage, violating several provisions of the state constitution. As a result, the legislature was required to redraw the maps to more fairly represent all North Carolinians. In rendering its pro-democracy decision, the state Supreme Court rejected the radical ISL theory—which the Republican House speaker and his fellow litigants attempted to root in the Elections Clause of the U.S. Constitution—that the state legislature has the sole authority to draw congressional maps without review by state courts or limits of the state constitution. But the North Carolina Legislature appealed to the U.S. Supreme Court, asking it to consider the case and reinstate its maps. The Supreme Court granted certiorari and heard oral arguments in December 2022.
While that appeal was pending, an election resulted in the ideological makeup of the North Carolina Supreme Court shifting significantly to the right. In April 2023, the newly composed court took the exceptionally rare step of quickly reversing itself, finding that it lacked jurisdiction to hear cases about gerrymandered maps and overruling its prior decision to invalidate the Republican-drawn maps. The U.S. Supreme Court then asked for supplementary briefing on the issue of whether the pending appeal had become procedurally moot.
The Supreme Court rejected a maximalist version of the ISL theory, but a lack of clear review standard leaves some uncertainty
A strong and ideologically diverse majority of six justices—John Roberts, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson—first concluded that the appeal was not moot. Turning to the merits of the case, this majority roundly rejected a broad interpretation of the ISL theory, adopting the position that CAP and many others had urged. Tracing clear case precedent, the majority held that the Elections Clause does not give state legislatures unbridled authority to pass laws regarding federal elections and draw congressional maps. To the contrary, state legislatures are subject to normal legislative processes and checks and balances, as has been the case for more than 200 years. These include governors’ vetoes and people-powered ballot initiatives, as well as review by state courts applying state constitutional provisions.
Nonetheless, the majority concluded that state courts “do not have free rein” to go beyond “ordinary bounds of judicial review” in relevant cases. In other words, there may be times when state courts can exercise too much power and impermissibly usurp the authority vested in state legislatures to set the rules for federal elections. The majority warned that state court interpretations of state law must not evade federal law and gave litigants the ability to ask federal courts to review state court decisions concerning state laws regulating federal elections. But the majority did not announce a specific standard of review for such cases to ascertain when state courts go too far.
The high court allied across ideological divisions and refused to give comfort to political extremists intent on allowing partisan state legislators free rein to subvert elections.
In a solo concurrence, Justice Kavanaugh affirmed the majority’s principle that federal courts can still play some sort of role in these types of election-related cases. As discussed further below, Kavanaugh also addressed the issue of potential standards of review, and he provided a signpost for the path ahead, writing, “In the future, the Court should and presumably will distill that general principle into a more specific standard.”
In crafting their majority opinion, the justices seemed to recognize the current political state of affairs, including that, in this age of extremism, free and fair elections depend on a robust system of checks and balances. In the past few years, more than 20 state legislatures have passed laws that subvert elections or suppress voters of color, often based on the unsupported myth of rampant voter fraud. These election laws, often reinforced by gerrymandered maps, undermine the will of the people and allow partisan state legislators to unfairly consolidate power and pass unpopular policies, often at the expense of long-marginalized communities.
It is noteworthy that in another Supreme Court decision released only three weeks earlier, Allen v. Milligan, the high court delivered another victory for voters and a defeat for racial gerrymandering. In that case, the Supreme Court—in a narrow 5-4 decision—struck down Alabama’s congressional map as a likely violation of Section 2 of the Voting Rights Act, which prohibits any voting law, practice, or map that results in the denial of the right to vote of any citizen on account of race. In tandem, Moore v. Harper and Allen v. Milligan are welcome news in the fight for a truly multiracial democracy. Only 10 years earlier, the Supreme Court took a radically different approach in Shelby County v. Holder, gutting much of the Voting Rights Act, namely its important “preclearance” requirement. In the ensuing decade, states have passed more than 90 laws specifically restricting voting, according to the nonpartisan Brennan Center for Justice.
In crafting their majority opinion, the justices seemed to recognize the current political state of affairs, including that, in this age of extremism, free and fair elections depend on a robust system of checks and balances.
The Moore v. Harper majority may also have been swayed by the large number of respected conservative judges and lawyers who argued in appellate briefs against the ISL theory and for principled constitutional interpretation. For instance, the venerated conservative former federal circuit court judge J. Michael L. Luttig earlier had 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 sharp contrast, only a small cohort of extreme conservatives filed briefs in the case arguing for the ISL theory. This included attorney John Eastman, who, in the months surrounding the 2020 presidential election, improperly invoked the ISL theory to argue that state legislatures could invalidate states’ certified election results; he is now facing potential disbarment.
Perhaps not surprisingly, those extreme views gained favor in the Moore v. Harper dissent, authored by Justice Clarence Thomas. Joined by Justices Samuel Alito and Neil Gorsuch, the dissenters would have dismissed the appeal as moot. But addressing the merits, Thomas and Gorsuch said they would have adopted a robust version of the ISL theory and criticized the majority’s lack of an articulated review standard for similar cases that will arise.
Future cases will likely provide further direction on the precise reach of the ISL theory
The decision in Moore v. Harper means that, going forward, a broad range of state actors, beyond only the legislature, can help set election policies for federal elections, especially during emergency situations such as natural disasters or pandemics. The Supreme Court affirmed in Moore v. Harper not only that state courts may interpret state constitutions and other sources to review challenged state laws or gerrymandered maps, but also that governors, election officials, and ballot initiatives all retain their key roles in the legislative process. Involving a broad group of institutional stakeholders and voters in policymaking and dispersing power tends to diminish runaway extremism.
In the future, state courts may feel relatively comfortable reversing unconstitutional anti-voter state laws, as they have done traditionally, which should also act as a deterrent for overtly partisan state legislators trying to subvert elections. And now that the Supreme Court has ruled in Moore v. Harper, pending lawsuits can proceed without being restricted by a maximalist version of the ISL theory. According to one prominent election law litigator, Marc Elias, 28 relevant cases that have brought claims under state constitutions and state law can now move forward. For example, the Utah Supreme Court is now considering what actions it may take in a partisan gerrymandering case.
We are going to see constant litigation around this issue in the 2024 elections until courts provide a more clear sense of the boundaries on state court decision-making.
NYU law professor Rick Pildes
On the flip side, state courts—and governors and state election officials—will now be cognizant that they cannot deviate too far from unambiguous election statutes related to federal elections by making different policy choices, especially when they base their decisions on broad phrases in state constitutions. As discussed above, the U.S. Supreme Court left a door open for federal court review and second-guessing of state court rulings in exceptional situations. And muddying the waters, the majority articulated only a vague review standard to guide its future analyses in those cases.
It is therefore little surprise that a central remaining question involves what the ultimate standard of review will be. The Moore v. Harper majority held that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Similarly, in the Supreme Court’s 2000 Bush v. Gore case, Chief Justice William Rehnquist, laying the original groundwork for a version of the ISL theory, said that state courts cannot have “impermissibly distorted [state law] beyond what a fair reading required.” In that same case, Justice David Souter invoked a comparable standard—albeit not in support of the ISL theory—positing that state courts cannot exceed the limits of “reasonable interpretation” of state law. Justice Kavanaugh’s concurrence in Moore v. Harper traced and embraced these similar standards, declared a predilection for Rehnquist’s formulation, and said that federal courts need to compare election law in earlier state decisions to see how much deviation is appropriate.
As federal courts—and, ultimately, the Supreme Court—flesh out a specific standard of review in relevant election law cases, federal court litigation may increase, which is generally not an optimal outcome for an already burdened judiciary. Litigants who lose state court cases may then try their luck in federal court, arguing that state courts transgressed the ordinary bounds of judicial review, especially if litigants think they will achieve a better outcome in federal court. Their likelihood of success may depend in large part on the specific federal court standard of review.
To add a layer of pressure, a flurry of litigation will likely arise during the high-stakes 2024 presidential election cycle, creating another democracy stress test. According to New York University law professor Rick Pildes, “We are going to see constant litigation around this issue in the 2024 elections until courts provide a more clear sense of the boundaries on state court decision-making.” Many cases may be decided as part of the Supreme Court’s emergency or “shadow” docket, which can limit full, on-the-record development of legal doctrine.
[The decision is] a signal that this United States Supreme Court, with a solid six justices behind it, will resist attempts by state legislatures to mess with the integrity of the 2024 election.
Former U.S. acting Solicitor General Neal Katyal
Some experts are concerned. Election law professor Rick Hasen stated: “It’s going to be ugly, and sooner rather than later it could lead to another Supreme Court intervention in a presidential election. Moore gave voters a win today, but it sets up a Supreme Court power grab down the line.” Hasen believes the decision to give federal courts new power over state courts is “a time bomb waiting to explode.” In evaluating the role of the Supreme Court, another election expert, David Daley, wrote:
A court that has already proven, time and again, its willingness to put the thumb on the scale for its own side in cases at the heart of American democracy may decide those future cases on a case-by-case basis, with no clear standard at all, based on how the individual justices feel about that state supreme court’s interpretation, and perhaps the consequence of that ruling. It’s an uncomfortable position to begin a presidential election.
Yet many other stakeholders take a more positive view. Election law professor Derek Muller, for example, predicts: “I think there’s going to be a lot of litigation. But I question how successful that litigation will be. I think there’s a very low likelihood of success.” Similarly, Cameron Kistler, a legal counsel at the nonprofit group Protect Democracy, believes “the Supreme Court is going to want to draw a pretty firm line here, because the last thing they want is for every election law determination by every state official and every state court to present a federal issue.” Finally, Neal Katyal, a former U.S. acting solicitor general who argued the case for voting rights groups in Moore v. Harper, called the ruling “a signal that this United States Supreme Court, with a solid six justices behind it, will resist attempts by state legislatures to mess with the integrity of the 2024 election.”
The ISL theory is so reckless and ill-supported it remains surprising that it reached the Supreme Court for serious consideration. In rejecting a broad version of the ISL theory, a supermajority of the high court allied across ideological divisions and refused to give comfort to political extremists intent on allowing partisan state legislators free rein to subvert elections. This was a welcome step from a Supreme Court that too often in recent years has ruled in ways that have undermined democracy, diminishing Americans’ confidence in the high court. In the years ahead, it will be incumbent on the Supreme Court to further hone its standard of review in similar election-law cases, not unduly limit the ability of state courts and state constitutions to act as checks against conspiracy-driven legislatures, and see that federal judges do not damage the legitimacy of federal elections.
The author would like to thank research assistant Sydney Bryant for her valuable help on this column.