The Washington PostDemocracy Dies in Darkness

Supreme Court majority questions massive shift of election authority

Supreme Court Associate Justice Elena Kagan warned on Dec. 7 against stripping state courts of oversight over elections in favor of state legislatures. (Video:
8 min

A majority of Supreme Court justices on Wednesday seemed reluctant to conclude that state legislators may manipulate congressional district lines and set federal voting rules without any oversight from state courts, after nearly three hours of debate over what would be a fundamental change in the way elections are conducted.

But some justices also indicated they believed state courts could be restrained from becoming too big a player in election decisions — at some point when “the state court would not be acting as a court but would be acting more as a legislature,” in the words of Justice Amy Coney Barrett.

Under the theory advanced by North Carolina’s Republican legislative leaders, state lawmakers throughout the country could have exclusive authority to structure federal elections, subject only to intervention by Congress. The “independent state legislature theory” holds that the U.S. Constitution gives that power to lawmakers even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions.

The case could have a major influence on results in the 2024 election. It has drawn attention in part because of the nation’s polarized politics, where former president Donald Trump and his allies still advocate to overturn the 2020 election, and the midterms showed that control of Congress can depend on the drawing of congressional district lines.

The court’s three most conservative justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — seemed receptive to a reading of the Constitution in line with that of the North Carolina legislators. The court’s liberals — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — did not.

Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Barrett seemed more conflicted, and perhaps looking for ways to ensure that state courts do not take over the supervision of election processes in which legislatures are the primary actors.

All of the justices seemed to agree that was a goal. But drawing a line to decide when a court stops acting as a court and moves into legislative territory could be a difficult task.

Washington lawyer Donald B. Verrilli Jr., a former solicitor general in the Obama administration representing the state’s election officials, said the U.S. Supreme Court should second-guess state supreme courts only when a decision marks such a “sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.”

Republican leaders in North Carolina want the Supreme Court to restore a redistricting map that was drawn by the GOP-led legislature but rejected as a violation of the state constitution by the state’s supreme court.

Backers of the independent state legislature theory say the U.S. Constitution’s election clause gives state legislatures “the federal function of regulating congressional elections” and that states may “not limit the legislature’s discretion.” Because there is a similar reference to “legislature” in an accompanying provision of the Constitution regarding presidential elections, the stakes are even higher.

Justice Brett M. Kavanaugh on Dec. 7 questioned how much the petitioner’s case in Moore v. Harper would limit state courts’ election oversight. (Video: The Washington Post)

Attorney David H. Thompson, representing North Carolina Republicans, pointed to founding-era history and the text of the Constitution to explain why state courts cannot limit the power of legislators to set federal election rules.

Because the U.S. Constitution specifies that the “legislature” sets federal election regulations, “States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function,” Thompson said.

But Roberts and Barrett said the court’s precedents do not support such an absolutist view.

Roberts noted that the court held decades ago that a governor may veto the legislature’s redistricting plan. “The power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants,” Roberts said.

When Thompson said there could be a difference between procedural roles for other state actors like governors and judges but not a substantive one, Barrett said it was “notoriously difficult” for courts to draw lines between substance and procedure.

The court’s liberals were more focused on the big picture of Thompson’s theory.

“It seems very much out of keeping with the way our governmental system works and is meant to work,” Kagan said, adding: “This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country . . . And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”

“There is a check. There is a balance,” Thompson said. “We’ve got the legal check from federal law, and we’ve got the political check that the founders envisioned of going to Congress.”

Supreme Court to consider fundamental change in elections authority

Opponents, including civil rights organizations, Democratic-led states and former Republican judges and election lawyers, say North Carolina’s approach would endanger hundreds of state constitutional provisions and state court decisions. In the past, state courts have played an influential role in the congressional redistricting battles following the 2020 Census. Judges have reined in Republican gerrymanders in North Carolina and Pennsylvania, for instance, and rejected maps drawn by Democratic-led legislatures in New York and Maryland.

Attorney Neal Katyal, representing North Carolina Common Cause and League of Conservation Voters, said the lawmakers’ theory is at odds with the historical record. He warned of a “blast radius” if the justices accept the argument that would create chaos for voters with “one set of rules for federal elections and one set of rules for state elections.”

The Biden administration opposed the independent state legislature theory. Solicitor General Elizabeth B. Prelogar told the justices that “text, long-standing practice, and precedent show that the Elections Clause did not displace” state courts’ “ordinary check on state lawmaking.” Agreeing with the legislative leaders’ theory, she said, would “wreak havoc in the administration of elections across the nation.”

In North Carolina, a purple state, analysts said the map created by Republican legislators after the 2020 Census would have given the GOP an edge in 10 of 14 congressional districts. Democratic justices on the elected state Supreme Court said the redistricting maps had a partisan tilt “not explained by the political geography of North Carolina.”

Under a new map imposed by the courts just for the 2022 election, the congressional delegation is split 7 to 7.

In various decisions leading up to the 2020 elections and since, Alito, Gorsuch and Thomas have said they were skeptical that state courts have the power to overrule the legislature’s decisions regarding federal elections.

Alito pressed the lawyer for the challengers about whether a state supreme court composed of elected judges was any less political than having lawmakers draw voting maps.

“There’s been a lot of talk about the impact of this decision on democracy,” he told Katyal. “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts, where the candidates are permitted by state law to campaign on the issue of districting?”

Throughout the argument, several justices returned to the court’s handling of the disputed 2000 presidential vote in Bush v. Gore. Chief Justice William H. Rehnquist wrote in a concurring opinion that the Constitution’s grant of power to legislatures to oversee elections limited the power of state judges to intervene, while recognizing a role for the courts.

Kavanaugh noted in an exchange with Thompson that Rehnquist “seemed to acknowledge that state courts would have a role interpreting state law and that federal court review of that should be, in his words, deferential and simply should be a check to make sure that state court had not significantly departed from state law.”

“Your position seems to go further than that,” Kavanaugh said.

Some justices, including Roberts, questioned whether there might be a problem with state supreme courts reversing the decisions of legislatures based on vague constitutional provisions. North Carolina’s court, for instance, threw out the legislature’s plan for violating a guarantee to “free elections.”

“When the state supreme court was freed of standards and rules, it was no longer acting as the judiciary,” Thompson said.

But Sotomayor pointed out that’s what courts do in interpreting a constitution.

“I take your answer to mean that there are no judicially enforceable standards to interpret the freedom of speech, freedom of assembly, and equal protection clauses of the [U.S.] Constitution because they, on their face, would appear to be as unmanageable,” she said.

Verrilli reminded the justices that the state’s Republican leaders were not challenging the state supreme court’s reading of the law, only its authority, which included because of state law the imposition of a new map.

If a court finds a constitutional problem, there must be a remedy, Verrilli said. “You have to have a map to have an election.”

The case is Moore v. Harper.