Bullet Dodged? Supremes Nix Independent State Legislature Theory


Some of us feel we can exhale again.  The Supremes haven’t given state legislatures carte blanche to shape federal elections within their borders however they like.  That wasn’t a forgone conclusion.  But Chief Justice John Roberts’ 6-3 majority opinion in Moore v. Harper leaves little doubt.

The court could have put its seal of approval on the Independent State Legislature Theory (ISL), which basically says that under the Constitution’s Elections Clause, state legislatures do have carte blanche. Which is what the plaintiffs, North Carolina’s Republican legislature, argued in vain.

North Carolina’s Republican legislature had created an egregiously gerrymandered electoral map.  The state supreme court said it was unconstitutional and sent the case back to a lower court.  The upshot was a very even-handed map.  Republican legislators sued.  They said the court had no power to intervene.  The case reached SCOTUS.  Which had said for years ago in Rucho – with Roberts writing the majority opinion – that federal courts couldn’t adjudicate state gerrymandering cases – but that state courts definitely could.  Was the high court now going to say, “just kidding?”  Was Roberts?

ISL may sound loopy – the Founders weren’t big fans of unchecked power exercised by either legislative or executive branches – and arguably it is.  During last December’s oral argument on Moore, Neil Katyal, representing private parties that had joined the state, argued that “there’s no such thing as an independent state legislature.  Petitioners’ idea that state legislatures created by state constitutions are independent of them is wrong. It is rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice, especially New York, where judges vetoed federal election bills. It’s also rejected by this Court.” 

The theory stems from the late Chief Justice William Rehnquist’s concurrence in Gore v. Bush, the decision that threw the 2000 Presidential election to George W. Bush.  Courts haven’t blessed it.  But before the Moore decision, Thomas – who had joined Rehnquist’s original concurrence – Alito, and Gorsuch had all spoken well of it, and Kavanaugh had suggested it had substance.

On the other hand, SCOTUS had ruled in 2015 that state legislatures don’t have exclusive power over elections.  The late Ruth Bader Ginsberg wrote the majority opinion in Arizona State Legislature v. Arizona Independent Redistricting Comm’n, with Clarence Thomas, the late Antonin Scalia, and Chief Justice John Roberts dissenting.

But a lot has happened since 2015: RBG is gone; Gorsuch, Kavanagh, and Barrett have arrived.  Now it’s hard to know what will and won’t get five votes. 

And a lot of people took it as a bad sign when Moore v. Harper wasn’t simply dismissed.  There was no need to decide it.  Republicans now controlled both North Carolina’s legislature and its court.  There was no longer a conflict.  The case was arguably moot.  The Biden administration asked the court to dismiss it, but the court didn’t.  Some people expected the worst.  The worst didn’t happen.

Predictably, Thomas and Alito, joined by Gorsuch, dissented.  Barrett and Kavanaugh both voted with Roberts. The Chief Justice was blunt.  He quoted Ginsberg that “fashioning regulations governing federal elections ‘unquestionably calls for the exercise of lawmaking authority.’” And, he wrote, “the exercise of such authority in the context of the Elections Clause is subject to the ordinary constraints on lawmaking in the state constitution.” In addition, “[h]istorical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. “ 

Thank goodness.  People are always proclaiming something or other a dire threat to democracy.  This really was.  Let’s hope we’ve seen the last of the Independent State Legislature Theory.


  1. In my ideal world, independent professional geographers and demographers — not politicians — would draw legislature maps.

    Population distribution trends and clusters would produce rationally bordered districts, similar to telephone area codes; and as the parties would not be involved, political gamesmanship like the ISLT wouldn’t be a factor. Redmond and Kirkland currently sharing a Congressional district with Marysville but not the southern half of Bellevue makes no geographic or demographic sense at all. I’d like to see how the professional map makers would redraw the boundaries.

    (This will never happen, I know, but no harm in suggesting it.)


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