The Legal Theory That Might Redefine Elections in America: Independent State Legislature Theory and the Moore vs. Harper Case

If one has ever doubted the power and influence of the Supreme Court, the end of the 2021-2022 term – which, among other cases, saw the overturning of Roe vs. Wade and major restrictions made to the Environmental Protection Agency – proved that the current conservative supermajority of the Roberts Court is unafraid to make bold judicial decisions. In the ensuing months of the 2022-2023 Supreme Court term, the justices will hear Moore vs. Harper, which has garnered attention for the radical election law doctrine that sits at its center: independent state legislature theory. The controversy surrounding the case involves the potential radical restructuring of electoral law and the intrinsic links between independent state legislature theory and the “Big Lie” conspiracy theories that have fueled various states’ pursuits of voting restrictions.

What is independent state legislature theory? Much as the name suggests, this fringe constitutional theory advocates for sole authority over federal election regulations to be ceded to state legislatures. While, under current law, the state’s power to legislate federal elections operates under the standard checks-and-balances system related to legislative acts (i.e. a governor’s ability to sign or veto an act, a state court’s review of an act, and publicly-voted ballot measures), the Supreme Court’s possible adoption of independent state legislature theory would put unchecked power solely in the hands of the state legislative bodies.

The constitutional backbone of this legal doctrine lies in an alternative reading of two clauses of the United States Constitution. The first is the Elections Clause (Article 1, Section 4, Clause 1), which reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”  The second is the Presidential Electors Clause (Article 2, Section 1, Clause 2), stating that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...”

In each of these clauses, the linchpin word used is “Legislature,” the body to which the Constitution hands the responsibility for overseeing Congressional and Presidential elections. According to standard legal understandings, the word “Legislature,” as invoked in these clauses, refers to the state legislature as well as the aforementioned checks and balances that are typically associated with legislative action (the governor’s approval, state courts, and ballot measures). However, according to proponents of the independent state legislature theory, the word “Legislature” refers strictly to the state legislature itself, excluding the ability of other state entities to serve as a check. Thus, if the the Supreme Court were to rule on the side of independent state legislature theory, the constitutionality of a governor’s veto, citizen-led state ballot initiative, or legal challenge concerning voting laws or congressional maps, as well as the utilization of independent redistricting committees to draw new congressional maps, would all be deemed invalid and unconstitutional.

Independent state legislature theory first emerged, in its most basic form, in Chief Justice Rehnquist’s concurring opinion in the 2000 Bush vs. Gore case deciding the result of the contested Presidential election. At the time, legal scholars took little note of Rehnquist’s questioning of the Constitution’s designation of the term “Legislature.” Yet, twenty years later, the idea to which Rehnquist first alluded became a central feature in President Trump’s attempt to overturn the results of the 2020 election. In the states in which Trump and his political allies filed lawsuits alleging that the election results were false, the arguments were almost uniformly rejected. One such case ascended to the Supreme Court, where it was also heartily rejected in a 6-3 decision. However, the three dissenting voices – Justices Thomas, Alito, and Gorsuch – embraced the independent state legislature theory argument, giving conservative legal credence to what was once a fringe theory.

Just one year later, as states were tasked with the redrawing of congressional maps preceding the upcoming 2022 midterm elections, the question of the boundaries of power placed on state legislatures once again became an issue in the courts; this question will soon be heard by the Supreme Court in the Moore vs. Harper case. This case resulted from a challenge to an electoral map passed (through a party-line vote) by the Republican-controlled North Carolina state legislature, resulting in 10 of the 14 Congressional seats being placed in Republican-favored districts. Consequently, a Democratic group challenged this map in North Carolina state courts, claiming that the map was the result of partisan gerrymandering and violated the North Carolina Constitution’s promise for “free elections.” 

The North Carolina Supreme Court, deciding in Moore vs. Hall (the antecedent to Moore vs. Harper), struck down the state legislature’s map and ordered a new one drawn, for which the state legislature’s Republicans produced yet another gerrymandered map. In response to this second map, the state court ordered that a map be drawn by independent experts. The North Carolina state legislature, citing independent state legislature theory, rejected the authority of the state court to make these demands, and is now seeking redress by the Supreme Court. As this case is brought before the Supreme Court, the Justices will not only be deciding on the North Carolina state legislature’s specific rejection of the map handed down by the state court, but on the underlying logic of this reinterpretation of the Constitution. If Justices Thomas, Alito, and Gorsuch – who have already expressed their endorsement of this theory in prior rulings – are joined by other members of the conservative wing of the Court to rule in favor of the North Carolina state legislature, this case could entirely upend the function of elections across the United States.

In the era of Big Lie-fueled efforts taken by states to restrict voting rights, one of the most significant stopgaps for these increasingly radical state legislatures has been the state court system. According to Supreme Court precedent, the Court would typically refer this issue back down to the state, reemphasizing the authority that state courts currently hold over this kind of dispute. However, if the Court decides in favor of independent state legislature theory, state legislatures will have the ability to decide not only the ways in which elections are held, but potentially their results. In cases such as gerrymandering, voter suppression, or the appointment of state electors for Presidential elections who will be loyal to a specific party as opposed to the voters, an unchecked, independent state legislature could essentially predetermine the outcomes of elections. 

This potential outcome speaks to the power of the ruling in the Moore vs. Harper case, which has become one of the most anticipated cases of the upcoming term. In response to this case and the deluge of election challenges that have worked their way through the courts system in the past several years, and almost certainly will emerge in the upcoming 2022 midterms and 2024 presidential election, many legal scholars are positing that questions of voting rights and elections, and the fairness of the voting process, will be the defining legal issue of our time. In just a few short years, independent state legislature theory has gone from a doctrine discussed almost exclusively on the fringes of conservative legal thought to an idea that will be argued in front of the Supreme Court and, potentially, become the law of the land.

Jesse Eick is a freshman concentrating in International & Public Affairs and History. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at jesse_eick@brown.edu.