The Supreme Court rejected a radical argument put forth by North Carolina Republicans that sought to give nearly unfettered power over federal elections to state legislatures, with Chief Justice John Roberts and fellow conservative Justices Brett Kavanaugh and Amy Coney Barrett joining the court's three liberals to rule on Tuesday that the claims had no merit.
Had the court accepted the GOP's claims, it would have upended the foundations of over two centuries of constitutional law. Such an outcome would have enabled new gerrymanders in several states and a torrent of Republican-backed voter suppression in many more ahead of the 2024 elections. In a worst-case scenario, it could have even allowed Republicans to rig the Electoral College heading into next year.
As some legal scholars observed in response to the decision, the majority appeared to accept a “milder version” of the GOP’s argument that could, as election law expert Rick Hasen put it, allow the Supreme Court “to second-guess state court rulings” in the future if such courts go “too far” in interpreting rules concerning federal elections under state law.
But the ruling nonetheless represents a major loss for Republicans. It also marks the second time this month that the court has rejected a far-right bid to solidify GOP gerrymandering and discriminatory voting restrictions: Earlier in June, the court unexpectedly upheld a key part of the Voting Rights Act in a redistricting case regarding discrimination against Black voters in Alabama.
Republicans here had appealed a decision from the North Carolina Supreme Court, which until this year had a Democratic majority. That majority had struck down the congressional map that Republicans had drawn following the 2020 census on the grounds that it violated the state constitution as an illegal partisan gerrymander.
The GOP then appealed to the United States Supreme Court to have its map reinstated, advancing a breathtaking doctrine known as the "independent state legislature theory." This theory, had it been embraced by the Supreme Court, would strip state courts of any power to enforce any provisions in their state constitutions that would limit legislators' ability to pass laws governing federal elections.
The GOP's argument centered on a tendentious reading of the word "legislature" in the portion of the U.S. Constitution known as the elections clause. That clause says that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof" unless Congress intervenes to the contrary.
In the view of Republicans, only the legislature itself can make such laws and cannot be impeded by any form of democratic oversight. State courts, therefore, would not be permitted to adjudicate the legality of any election laws pertaining to congressional or presidential elections (though federal law still bars states from retroactively overturning presidential results like Donald Trump had attempted following his 2020 loss).
And taken to its logical conclusion, governors would also lose the power to veto these laws—in fact, they wouldn't even have to sign them in the first place. Voters, likewise, would no longer be able to use ballot initiatives to pass laws impinging on federal elections, such as those creating independent redistricting commissions.
That position is not only extreme in the utmost, it also lacks any historical basis whatsoever, as extensive research has shown. It's entirely at odds with the way federal and state constitutional law have interacted since the very establishment of the Constitution, which sought to replace the hopelessly flawed Articles of Confederation and strengthen the national government by removing each state's unilateral veto power. As scholars of the founding era have noted, it makes no sense to think the framers wanted to do that while simultaneously leaving state legislatures unbound by the very state constitutions that created them.
The Supreme Court had in fact previously repudiated this tortured interpretation of the word "legislature" in a 2015 decision out of Arizona. In that case, Republican lawmakers sought to invalidate the independent redistricting commission that voters had adopted by ballot initiative so that the GOP could instead gerrymander the state's congressional map. But the court affirmed that the word "legislature" refers to all those empowered by state constitutions to shape laws, which necessarily includes governors, courts, and voters themselves.
While that decision ostensibly should have torpedoed the GOP's entire legal argument, two justices in the 5-4 majority that issued that ruling, Ruth Bader Ginsburg and Anthony Kennedy, have since been replaced by Trump appointees much further to their right. And subsequently, when Republican lawmakers appealed a Pennsylvania Supreme Court ruling relying on the state constitution to ease absentee ballot rules shortly before the 2020 elections, the U.S. Supreme Court signaled its openness to adopting the independent state legislature theory in the future.
In that case, the federal court deadlocked 4-4 and left the state ruling in place, with Roberts joining three liberal justices while four conservatives would have ruled for some version of the theory. The fifth conservative, Trump appointee Amy Coney Barrett, didn't participate because she'd only just been seated, but her addition to the court suggested there might soon be five votes in favor of some form of the doctrine.
That did not come to pass, however, thanks to Kavanaugh and Barrett siding with Roberts and the liberals. However, North Carolina Republicans will nonetheless be able to draw new gerrymanders for 2024 because their party gained control of the state Supreme Court in 2022; shortly thereafter, they overturned the previous Democratic majority's ruling that had struck down the GOP's congressional map. Lawmakers, said the state court, were now free to gerrymander without limit.
And while the U.S. Supreme Court just handed Republicans a major defeat, uncertainty looms in regard to the vaguely defined power the justices just awarded themselves to police state court rulings that relate to laws governing federal elections. However, experts are divided on just how much of a threat this possibility poses. Hasen called Tuesday’s decision “a bad, but not awful, result,” while in response to that assessment, constitutional law scholar Michael Dorf described it as “a pretty good, but not wonderful, result,” noting that the majority had “kill[ed] off the most dangerous versions” of the independent state legislature theory.
Whichever view is correct, the ideas animating this theory remain very much alive in right-wing legal circles. And as we saw with abortion, the right will keep pounding down the courthouse door until their views are one day accepted. Defenders of democracy must therefore remain on guard against the eventual return of this extreme and hazardous argument.
This piece has been updated to reflect additional analysis from legal experts concerning the Supreme Court’s ruling.