The Supreme Court rejected the independent state legislature theory, but did so without giving courts free rein to dominate legislative rulemaking.
When it comes to setting the rules for elections, the Supreme Court ruled on Tuesday, state legislatures are not allowed to ignore the Constitution or evade judicial review.
It may not have been the most politically divisive issue in this year’s Supreme Court docket—that honor probably goes to the still-yet-to-be-announced review of President Joe Biden’s student loan forgiveness scheme—but Moore v. Harper was the Court’s most potentially seismic case. It raised a fundamental question about the balance of power in election law: do state courts possess the authority to review and overturn state legislatures’ decisions about the rules for federal elections?
They do, the Supreme Court unambiguously declared in Tuesday’s ruling. « When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review, » Chief Justice John Roberts wrote in the 6-3 ruling.
That might seem like constitutional common sense. After all, anyone with a passing understanding of constitutional law knows that Marbury v. Madison confirmed that courts have the power to review the actions of the other branches of government. But the crux of the Moore case rested on a novel theory bouncing around conservative legal circles: the « independent state legislature theory. »
That theory has its basis in Article I, Section 4 of the U.S. Constitution, which explicitly grants state legislatures control over « The Times, Places and Manner of holding Elections for Senators and Representatives. » Advocates of the independent state legislature theory argue that the Constitution places those decisions—including the drawing of congressional districts—solely in the hands of state lawmakers, with no space for courts to intervene. Therefore, the argument goes, there are no constitutional or legal constraints on state legislators when setting the rules for elections.
A redistricting battle in North Carolina became the testing ground for that idea.
