08 December 22
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Believe it or not, that question was indeed in front of the justices on Wednesday in the case of Moore v. Harper. And the answer is probably not.
The context is a once-outlandish concept called the “independent state legislature theory” that, thanks to the ever-widening Overton window of conservative politics, is now on the edge of the mainstream. According to the ISLT, state legislatures are empowered by the Constitution to determine how federal elections are held, free from state constitutional provisions or state judicial review.
As three former solicitor generals noted to the Court, this is not how the Constitution has been understood for over two centuries, and all 50 states have provisions in their constitutions that would be instantly invalidated if the Supreme Court went along with the idea.
The basis for the theory is some unusual language in the Elections Clause of the Constitution, which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” This is indeed unusual: The federal Constitution is assigning power not to states or state governments but directly to legislatures.
Moreover, the theory holds, if a state court were to strike down an elections law — as in this case, where the North Carolina Supreme Court overturned a partisan gerrymander by the Republican-controlled legislature — that would place the state constitution higher than the federal Constitution, which is itself unconstitutional. Therefore, the argument goes, there should be no state judicial review of election laws. Or, as attorney David Thompson put it for the petitioners, “states lack authority to restrict legislatures because the legislature is fulfilling a federal function.”
An avalanche of legal authorities — a legal brief submitted by the chief justices of all 50 states, articles by conservative and liberal legal authorities, and three current or former solicitor generals — have now persuasively demonstrated that the Founders intended this legislative function to be just like every other one: subject to ordinary constraints, including review by state courts.
One of the three lawyers arguing against the ISLT was Neal Katyal, who served as solicitor general under President Obama and who has argued numerous high-profile cases before the Court. In impassioned tones, Katyal told the Court that “there are three Federalist Papers on the Elections Clause. None said they were trying to create this strange animal,” namely, a law that isn’t subject to judicial review.
Adopting the ISLT would also spell electoral chaos. If state legislatures aren’t held back by state constitutional provisions, they could change not only voting rules and congressional districts but also the way presidential electors are selected — which Donald Trump’s clown car argued back in 2020 — and be accountable only to federal courts and to Congress.
There would also be two parallel electoral systems in the country: State elections would still be subject to state constitutional review, but federal ones would not. You might well have one set of rules governing how you vote for Congress and a totally different set governing how you vote for governor. What Katyal called the “blast radius” of such a change would be enormous.
Then again, we’ve been down the road with this Supreme Court before. Something that seems outlandish — overturning Roe v. Wade, for example — suddenly becomes a possibility and then becomes the law. Could that happen here?
Based on today’s oral arguments, it doesn’t look that way. Justices Neil Gorsuch and Samuel Alito were the only two justices who seemed amenable to this radical rewriting of American democracy. Gorsuch in particular badgered Katyal incessantly, accusing him of “defending” antebellum Virginia’s adoption, in 1830, of the “three-fifths compromise,” the odious constitutional provision counting Black men as equal to three-fifths of a citizen. Katyal was doing no such thing, of course; he was referring to proceedings that included debate on that issue but also were about redistricting. Gorsuch even accused the progressive defenders of the status quo as simply looking out for their own interests given that it’s a Republican gerrymander that was thrown out. “This is about whose ox is being gored,” he said, rather than any consistent principle.
But the swing votes on the Court, John Roberts, Brett Kavanaugh, and Amy Coney Barrett, seemed unpersuaded. Instead, they spent a lot of time talking about how strictly federal courts should review state-court decisions — not whether state courts should even get to hear these cases in the first place. This suggests that those three justices would join the Court’s three liberals in rejecting the ISLT when the Court hands down its decision next year.
It’s harder to predict where Justice Clarence Thomas might land, but he got the biggest laughs of the three-hour-long proceeding when he told Katyal, “I’ve been waiting 30 years to ask you this question.” Thomas was notoriously silent for the first 25 years of his tenure on the Court but has become quite voluble of late and asked several questions today.
Thompson’s lawyering didn’t help his cause. During the argument, he got bogged down in a host of problematic distinctions: Procedural review is okay, but substantive review isn’t; statutory review might be okay, but constitutional review isn’t. It was a mess. “Every answer you give is to get you what you want, but it makes little sense,” said Justice Sonia Sotomayor in one of the morning’s many biting exchanges.
Indeed, it became grindingly clear during oral arguments that the text of the Constitution, the practices at the time it was ratified, and the subsequent history all undermine the ISLT — not to mention the total chaos that adopting it would create. Adopting the theory would be a radical decision by a conservative Court, and an anti-federalist decision by a Court staffed by the Federalist Society. “For 250 years,” as Katyal put it, “courts have not read the Constitution this way. There is no such thing as an independent state legislature. This idea is wrong.”
In some ways, the most surprising thing about this case is that the Court took it in the first place. But I think there may be a method to the apparent madness. In 2020, this fringe theory played a supporting role in Trump’s contesting of the election and eventually the January 6 insurrection. Though we’ll never know for sure, the Court’s decision to hear this case may be a bit like the bipartisan support for fixing the Electoral Count Act, which was also invoked by Trump’s cronies in their last-ditch efforts to undermine the election. Ultimately, if the theory gets its day in court and then goes down in flames, democracy will be that much safer. At least, one hopes so.
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