On Wednesday, the Supreme Court heard the most consequential case of this term, Moore v. Harper. If the justices reach the wrong decision, the case could fundamentally shift who has the power to decide controversies arising from popular elections—and make it easier for Republicans to launch their next coup attempt.
The case centers on the gerrymandered congressional map approved by North Carolina’s Republican-controlled state legislature last year. That map was so favorable to Republicans that the North Carolina Supreme Court found it violated the state’s Constitution. Republicans (who obviously wanted to keep the unconstitutional map and the electoral edge it conferred) appealed to the US Supreme Court to let them reinstate the map using an asinine argument known as the “independent state legislature theory.”
According to this theory, state legislatures are the only arbiters of election rules in their states. Never mind the state Constitution (which is approved by the state legislatures) or the state courts (which interpret the Constitution the state legislature agreed to) or the governor (who can override the state legislature by veto) or the board of elections or other commissions (vested with power given to them by the state legislature), and never mind the voters themselves (who elect the state legislature and, in some states, adopt statutes or constitutional amendments through popular referendum): The independent state legislature theorists would have you believe that the only check on state legislatures’ election-setting powers is the federal Constitution.
The ostensible textual basis for this theory comes from Article I, Section 4 of the Constitution—more commonly known as the Elections Clause—which states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” North Carolina’s independent state legislature theorists have somehow decided that this line gives all the power over elections to the state legislature, and the state legislature alone, despite the fact that not one court in the 230-plus-year history of this country has ever interpreted the clause that way.
It’s just not a credible argument on the law. It’s unsupported by history, and it flies in the face of the practical realities of running a democracy. The theory is ludicrous, and, frankly, I’m sick of pretending these archconservative legal arguments are anything other than intellectual poop thrown at the judiciary by an ill-tempered monkey who lacks the skills to make a more scholarly argument. A teacher once told me, “There are no stupid questions.” She was wrong.
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But the theory isn’t just off-base; it’s also dangerous. Republicans are arguing that they can upend over 200 years of election law and precedent based on a newly invented interpretation of one word—“legislature.” If they get away with it, any law, right, or constitutional principle can change or be taken away whenever Republicans feel like vesting political authority in a comma.
The immediate dangers of this case are just as dangerous as the long-term implications. Remember how I said that independent state legislature zealots claim that the only power that can rein in state legislatures that go too far is the federal Constitution? Well, in reality, the federal government can’t be counted on anymore to fix what state legislatures break. That’s because in 2019, in Rucho v. Common Cause, the conservative-controlled Supreme Court ruled that political gerrymanders are “nonjusticiable” by federal courts—meaning, effectively, that only state courts can apply constitutional principles to partisan mapmaking. The combination of the North Carolina Republicans’ independent state legislature theory and the conservative court’s theory about “nonjusticiability” creates a constitutional dead zone where no court, state or federal, can check the power of a state legislature to gerrymander its way to permanent partisan control of that legislature and the state’s congressional delegation.
And wait, it gets worse, because the federal Constitution also gives broad power to the individual states to define the “time, place, and manner” of all sorts of electoral matters. Under the North Carolina theory, a number of electoral processes traditionally carried out by nominally nonpartisan state boards of elections could come under the sole purview of partisan state legislatures, without even the option of judicial or constitutional review. And then there’s the elephant in the room: certification of each state’s slate of electors in a presidential election. If North Carolina prevails, certification could also become a matter at the sole discretion of state legislatures, without any opportunity for judicial review.
If all this sounds like Republicans are trying to zip-tie the Constitution until it declares Donald Trump the president, it should. What North Carolina Republicans are trying to do is no less than legalize the next coup. Obviously, showing up on January 6 with guns and blunt-force weapons didn’t work the last time these kinds of Republicans tried to overturn the results of an election. Next time, they’ll show up with fake electors made “real” by a partisan legislative process that can’t be contested through normal constitutional means.
In 2020, courts rejected Trump’s legal arguments to overturn the results of an election that had already happened, but the Supreme Court was willing to entertain this case, which can make the coup easier to pull off legally the next time around. Neal Katyal, who argued the case on behalf of the voters that North Carolina’s Republicans are trying to disenfranchise, got to the heart of the matter when he pointed out that the North Carolina position would essentially invalidate state constitutional voter protections in all 50 states.
It should go without saying that this addled inversion of normal constitutional order found support from at least some of the conservatives on the Supreme Court. Clarence Thomas, whose wife, Ginni, was in 2020 busy shopping the independent state legislature theory alongside the rest of her plans to overthrow the government, sounded totally onboard for the chaos. So too did Justices Samuel Alito and Neil Gorsuch.
Gorsuch’s defense was especially odious. He argued that the theory is what prevented the state of Virginia from adding a “three-fifths clause” (to count slaves as three-fifths of a person for the purpose of congressional apportionment) to the Virginia Constitution. He made it sound like the Virginia state legislature (a group of enslavers who profited off of human bondage) was the bulwark against that particular form of white supremacy. Left unsaid by Gorsuch, of course, was the fact that Virginia had no need to put a three-fifths clause into its state Constitution because it was already a part of the federal one written by Gorsuch’s beloved founding fathers, many of whom were Virginians.
When Katyal told him he was wrong, Gorsuch tried to make it sound like the lawyer was defending the three-fifths clause (he was not). It was an argument so risible I honestly think Gorsuch made it in open court just to tempt Ketanji Brown Jackson to rise up out of her seat and hit him with a shoe. (She didn’t take the bait. I would be in jail.)
But the astute reader will notice that I’ve only mentioned three of the five justices needed to make North Carolina’s nightmare America’s reality. Going into oral arguments, I assumed alleged attempted rapist Brett Kavanaugh would be a fourth vote. That’s because Kavanaugh has worked to make this theory a thing, and that started all the way back when he was a lawyer for George W. Bush during the 2000 election. In Bush v. Gore, Chief Justice William Rehnquist argued for the independent state legislature theory as a reason why the court-ordered Florida recount should be stopped in deference to the wishes of the Republican-controlled Florida state legislature.
Rehnquist’s opinion was not the grounds on which the Supreme Court eventually stopped the recount. Again, the independent state legislature theory is a fringe thing that’s never been recognized by an American court. But Kavanaugh is on the record supporting it. There’s even a clip of him talking about it with CNN’s Wolf Blitzer in 2000.
So it was surprising when, during oral arguments in Moore v. Harper, Kavanaugh seemed eager to distinguish Bush v. Gore from the case North Carolina was making. Kavanaugh argued that Rehnquist was right, and that the independent state legislature theory could be applied to statutes, meaning that the legislature is the final arbiter of the laws they themselves pass. But he suggested that state courts might hold the final say over the interpretation of the state Constitution, including whether redistricting maps violated it. It’s a bit of a thin slice of the legal pie: It doesn’t make a lot of sense to say that state courts can interpret constitutional law but not statutory law. But at least Kavanaugh wasn’t coming out as an unhinged chaos merchant like Gorsuch was. A ruling that the North Carolina Supreme Court had the right to review the North Carolina maps, but made an error in the application of their power, would still be a bad decision, but not a democracy-changing one.
The real swing vote in this case was always going to be Amy Coney Barrett. The three liberals are against the independent state legislature theory, and so is Chief Justice John Roberts. (Even though this case is fundamentally Roberts’s fault—it was his decision in Rucho that set the stage for the constitutional dead zone North Carolina now seeks to exploit—Roberts wants to give more power to courts, not take power away from judges.) But unlike all the other conservatives, Barrett has no priors on this issue. She hasn’t said anything about it before, and, as far as we know, isn’t married to anybody who supports the violent overthrow of the American government. I don’t even think Jesus has a solid position on the independent state legislature theory.
Barrett’s questions suggested that she simply wasn’t buying what North Carolina was selling. Now, you have to be careful with reading the tea leaves when it comes to Barrett, because, based on what I’ve seen from her brief Supreme Court career, she’s a person who asks smart, thoughtful, probative questions that make it seem like she’s really wrestling with the issue, only to side with the most extreme and brain-dead conservative theory of the case when the votes come in. Still, for what it’s worth, her questions got at the intellectual inconsistency of North Carolina’s argument, and she sounded unimpressed by the answers their lawyers gave in response.
We’ll have to wait until June (most likely) to know how the court will rule on this case. But if the case fails, it will simply be because the nihilist wing of the Supreme Court tried to go a step too far. Remember, conservatives on the court don’t need to adopt this cockamamie theory to ensure smooth sailing for Republican candidates in upcoming elections. The conservatives have already allowed for state-level partisan gerrymandering without any federal interference. They’ve already empowered voter suppression schemes by neutering the Voting Rights Act. And they already hold a Supreme Court veto over any liberal policies that do slip through the few cracks they’ve left for democratic self-government.
Conservatives don’t need the independent state legislature theory to secure additional victories for the Republican agenda. That’s my best hope for why it will be rejected. Conservatives have rigged elections well enough that they don’t have to repudiate them.
