June 27, 2023 – You’re reading The Briefing, Michael Waldman’s weekly newsletter. Click here to receive it every week in your inbox.
Sanity prevailed today at the U.S. Supreme Court. In Moore v. Harper, six justices issued a near total rejection of the “independent state legislature theory” — a bogus and ahistorical reading of the Constitution that would have stripped important checks and balances out of federal election administration and opened the door wide to extreme partisan gerrymandering and voter suppression.
Regular readers of The Briefing know the story of this case. North Carolina is evenly divided politically. During the 2020 redistricting cycle, the state legislature drew a ludicrously gerrymandered congressional map that would have produced 10 Republican and 4 Democratic House members. The state supreme court ruled that the map violated the free elections clause of the state constitution and ordered the legislature back to the drawing board.
Members of the North Carolina legislature appealed directly to the U.S. Supreme Court. They did not contest the state court’s conclusion that the map was gerrymandered. Rather, they argued that the state court had no authority to review the legislature’s actions — that the Elections Clause of the U.S. Constitution grants state legislatures near absolute authority over federal election administration and that neither governors, state judges, nor state constitutions can review the legislature’s actions. In other words, when it comes to federal election administration, there are no checks and balances at the state level.
This was as absurd as it sounds. It lacked any grounding in logic, precedent, structure, or history. For more than 200 years, no one ever read the Elections Clause this way. Indeed, from the very beginning of the republic, governors, state courts, and state constitutions participated in federal election administration. The historical case for the theory is so weak that proponents cited a draft of the Constitution that turned out to be a 19th-century fraud.
The independent state legislature theory would have utterly upended our system of elections. According to Brennan Center research — which was submitted to the Supreme Court for consideration in the case — adopting the theory would have undermined hundreds of state constitutional provisions, hundreds of state court decisions, and more than 650 delegations of authority by state legislatures to other state officials to administer federal elections.
Today, the justices killed off the independent state legislature theory. The Court reviewed the lengthy history of judicial review of election administration at the state level. It recognized that around the time of the founding, some states explicitly granted veto power over the redrawn maps to state governors. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” concluded Chief Justice John Roberts, writing for the majority.
Roberts accused Justice Clarence Thomas — often described as the Court’s foremost originalist — of “simply ignor[ing]” the uninterrupted thread of history and precedent contradicting the independent state legislature theory and of failing to account for the framers’ understanding of the structure of our government. Ouch.
Unfortunately for the people of North Carolina, the Supreme Court’s decision will not restore fairness to their electoral maps. When conservatives won control of the state supreme court in a recent election, the justices overruled their predecessors and reinstated the gerrymandered map. Those maps will remain in place until the next redistricting cycle.
Also, the Court should never have heard the case — there is now a more or less perfect record that no court has ever upheld this fringe theory.
The headline is that checks and balances persist in election administration, and a party that seizes a legislative majority cannot abuse its position to entrench itself in unchecked power. The independent state legislature theory is dead.
Michael Waldman is president and CEO of the Brennan Center for Justice at NYU School of Law. A nonpartisan law and policy institute that focuses on improving systems of democracy and justice, the Brennan Center is a leading national voice on voting rights, money in politics, criminal justice reform, and constitutional law. Waldman, a constitutional lawyer and writer who is an expert on the presidency and American democracy, has led the Center since 2005. He was a member of the Presidential Commission on the Supreme Court of the United States in 2021. www.brennancenter.org