On Tuesday, the Supreme Court decision in Moore v. Harper rejected the most extreme version of the so-called independent state legislature theory. In doing so, the court avoided any immediate and significant disruption of the structure of federal elections.
But the decision, written by Chief Justice John Roberts, is not a total rejection of the theory. The court actually endorsed a weaker version of it, and this version will loom over — and potentially affect — the 2024 elections.
The independent state legislature theory is the view that the Constitution creates a uniquely independent role for state legislatures when they regulate federal elections. The extreme view that the North Carolina legislature took in the case would mean that even state constitutions could not limit the legislature’s power to, among other things, design the state’s congressional voting map in a way that unfairly maximizes one party’s advantage over the other (in this case, Republicans over Democrats).
If this extreme view had prevailed, it would have meant that even if a state constitution banned partisan gerrymandering, regulated the voting process or required a particular structure for primary elections, none of those constitutional requirements could be applied in federal elections. Nearly all state constitutions protect the right to vote, but state courts could not enforce this provision, along with all other substantive state constitutional provisions, in federal elections. If all these provisions were unenforceable, it would destabilize the federal election process and spawn numerous election-administration problems.
Relief that the court did not endorse this extreme position, though, must be tempered by the fact — which many initial responses to the decision have not recognized — that the court simultaneously endorsed a version of the independent state legislature theory. The court held that the Constitution imposes some limits on the way state courts interpret their own state constitutions. These limits also apply to the way state courts interpret state election statutes — as well as the way state election administrators apply state election statutes in federal elections.
Yet the court offers no guidance, no standard at all, for lower courts to know when a state court has gone too far. The decision merely says that “state courts do not have free rein” and that they 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.”
The court offers no concrete understanding nor any example of what that means. It’s clear that a majority was cobbled together among conservative and liberal justices by agreeing to decide this part of the case in the narrowest terms. Indeed, the court announced this constitutional constraint but avoided telling us even whether the North Carolina Supreme Court — in the decision the U.S. Supreme Court reviewed — had violated this vague limitation.
North Carolina’s constitution, unlike that of some other states, does not expressly ban partisan gerrymandering. But the state court interpreted general provisions in the state constitution — such as that requiring elections to be “free and fair” — to in effect ban partisan gerrymandering. Whether this decision transgresses ordinary judicial review or exemplifies it remains a mystery. Had the court resolved that question, it would have provided much-needed guidance for 2024. But the majority might well be divided on that question, with the opinion papering over that division rather than confronting it.
Judicial minimalism can be a virtue in many contexts. Deciding cases on narrow grounds or postponing resolution until a sharp conflict is unavoidably before the court can limit judicial overreaching and produce more consensus within the court.
But in the context of election law, it can be a vice. Elections benefit greatly from clear rules laid out well in advance of Election Day. Such rules minimize voter confusion; bolster the ability of election officials to communicate clear, consistent messages to voters; enable political campaigns to organize efforts to mobilize voters; and avoid continual litigation over unclear rules or doctrines. Clear rules specified in advance are all the more important in this era of pervasive distrust and suspicion concerning elections.
Rejecting the extreme version of the independent state legislature doctrine did provide important clarity along one dimension. But by endorsing a weak version of the independent state legislature theory, the court has ensured that legal uncertainty on this remaining constitutional front might roil the 2024 elections — and it has opened a different, if less expansive, set of problems. No great feat of lawyering will be required to transform disputes in federal elections about the actions of state election officials or state courts into federal constitutional claims that assert those state actors have “gone too far” in their interpretation of state constitutions or state statutes.
For illustrative purposes, let’s say in 2024 the Wisconsin state legislature passes a law establishing deadlines for requesting or returning absentee ballots, but a state court rules those deadlines unconstitutional because they contradict the state constitution’s guarantee of the right to vote. The losing party will now turn to the federal courts and argue that the state court has gone “too far” in its interpretation of the state constitution.
With Tuesday’s ruling, candidates and political parties are going to constantly test the boundaries in 2024 in the effort to gain partisan advantage. And with at least some of these challenges, like the hypothetical one above, the Supreme Court might well be called on for an answer.
The minimalist approach enabled the court to present a strong, mostly united public front on a significant case. But as an issue, the independent state legislature theory is still with us, and courts, campaigns and voters are still going to have to deal with the legal uncertainty the court has left hanging over the 2024 elections.
Richard H. Pildes, a professor at the New York University School of Law, is the author of the casebook “The Law of Democracy: Legal Structure of the Political Process.”