On December 7, the Supreme Court heard oral arguments in a case that could deliver control of elections to partisan state legislatures and spell the end of state court oversight of voting rules — a form of judicial review that has been in place for more than two centuries. As a result, protections for the right to vote that are enshrined in nearly every state constitution will be in jeopardy.

Former appeals court judge J. Michael Luttig, a highly respected conservative, called this “the most important case for American democracy” in U.S. history.

“To be clear, this is a political power grab in the guise of a legal theory,” wrote The New York Times editorial board. “Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent.”

In Moore v. Harper , the members of the court appeared divided over whether to reverse 233 years of precedent and adopt the controversial “independent state legislature theory.” It maintains that state legislatures can enact laws governing federal elections or draw congressional maps with no judicial review by state courts. If the court embraces this theory, hundreds of state constitutional provisions that govern federal elections could be nullified. It would make it easier for state legislatures to suppress the vote, subvert election results and facilitate the drawing of gerrymandered congressional districts.

Three of the right-wingers on the court — Samuel Alito, Clarence Thomas and Neil Gorsuch — indicated support for the marginal theory. The three liberals — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — registered strong opposition. John Roberts, Brett Kavanaugh and Amy Coney Barrett searched for a middle ground.

Trump Tried to Use the Independent State Legislature Theory to Overturn the Election

The independent state legislature theory was at the heart of efforts to nullify the results of the 2020 presidential election. Donald Trump’s lawyer John Eastman pushed this fringe theory to facilitate their “campaign to overturn a democratic election, an action unprecedented in American history,” U.S. District Court Judge David O. Carter wrote. Eastman argued that state legislatures should be allowed to disregard voting results and appoint their own slates of electors. Carter called it “a coup in search of a legal theory.”

In Moore, Republican legislators in North Carolina sought to restore their extreme gerrymander of the state’s congressional map that would have given the GOP as many as 10 of the state’s 14-member congressional delegation in the midterm elections. North Carolina is evenly divided between Democrats and Republicans, which was ultimately reflected in the 7-to-7 seat split between the two parties in the midterms.

The North Carolina Supreme Court held in February that the map was a partisan gerrymander that violated the state constitution’s guarantees of free and fair elections, freedom of speech, freedom of assembly and equal protection, and it refused to allow the map to be used in the midterm elections. In March, the U.S. Supreme Court upheld the state supreme court ruling blocking the use of the map while the legal issue is considered by the high court. Alito and Gorsuch dissented, skeptical about whether state courts could have any involvement in establishing rules for federal elections. Kavanaugh didn’t dissent but said the court should consider the independent state legislature theory.

This case involves the interpretation of the U.S. Constitution’s Elections Clause (Article I, Section 4), which says, “Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.” The independent state legislature theory limits the word “legislature” to the actual legislature. But there is near unanimity among scholars across the ideological spectrum that the term “legislature” is not limited to “the legislature.” It includes rulings of state courts grounded in the state’s constitution, citizen ballot measures and governors’ vetoes.

In 2019, the court held in Rucho v. Common Cause that partisan gerrymandering is not reviewable by the federal courts. But in the majority opinion, Roberts wrote that state courts could still apply state constitutions and statutes to restrict partisan gerrymandering.

Roberts, Kavanaugh and Barrett Look for a Compromise

During oral arguments, attorney David Thompson argued for the Republican legislators that the Elections Clause allows state courts to enforce procedural limitations on the legislature’s authority but they could not restrict substantive decisions by the legislature. Sotomayor said that trying to draw the line between substantive and procedural limits would be a “logical morass.” Barrett echoed that sentiment, saying they would be “notoriously difficult lines to draw.”

Alito clearly favored the independent state legislature theory. He noted that many state supreme court judges are elected. Alito asked attorney Neal Katyal, who argued on behalf of Democratic voters and nonprofits, “Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?”

Also squarely in Thompson’s corner was Gorsuch, who cynically confronted Katyal with the possibility that a state constitution could adopt the pre-Civil War constitutional theory that an enslaved person counted as three-fifths of a non-enslaved person.

Roberts, Kavanaugh and Barrett stopped short of fully embracing the independent state legislature theory. They appeared open to a compromise where state supreme courts could rule on state laws governing federal elections subject to review by federal courts in rare instances.

Although concerned about unchecked legislative power, Roberts told Thompson he was interested in a “narrower alternative ground to decide the case in your favor which would allow some substantive state restrictions to be enforced.”

Thompson said a state governor could veto an election law passed by the state legislature. Roberts responded, “Well, the governor is not part of the legislature,” suggesting that Thompson’s concession “undermine[s] your position.”

“There’s no basis in text or history for concluding that a governor’s veto can act as a substantive check on the legislative prerogative, but judicial review cannot,” attorney Donald Verrilli, who argued on behalf of North Carolina executive branch officials, told the court.

Kavanaugh cited Chief Justice William Rehnquist’s concurrence in Bush v. Gore , the case that handed the 2000 presidential election to George W. Bush. In it, Rehnquist first proposed the idea for the independent state legislature theory, which would allow a role for state courts subject to review by federal courts if they overstepped their authority.

Verrilli suggested a test for applying Rehnquist’s concurrence. The federal court would examine whether the state court ruling is “such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.” Katyal likewise said that the standard for a federal court to overrule a state court’s interpretation should be “sky high.”

U.S. Solicitor General Elizabeth Prelogar, who represented the Biden administration, also thought that federal courts should be “very deferential” to state court interpretations of state law. If a state court is not acting like a court, but rather seizing the legislature’s authority to make policy, that would violate the Elections Clause, Prelogar said.

Jackson noted that since the state constitutions create the state legislatures, constitutional constraints must apply to the legislature. “I guess what I don’t understand,” she told Thompson, “is how you can cut the state constitution out of the equation when it is giving the state legislature the authority to exercise legislative power.”

State Constitutions Have Always Regulated Time, Place and Manner of Elections

“We know that before the founding, at the founding of the Constitution, decades after, and even to today that state constitutions have regulated time, place, and manner,” Sotomayor pointed out. When Thompson retorted that he could counter her statement, Sotomayor snapped back, “If you rewrite history, it’s easy to do.”

Kagan said the independent state legislature “is a theory with big consequences.” It would provide “no state constitutional remedy” for “the most extreme forms of gerrymandering” by legislatures that “could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits.” Legislatures, she added, could insert themselves into “the certification of elections.”

“This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country,” Kagan declared, “at exactly the time when they are needed most.” She cited legislators’ “own self-interest,” adding, “They want to get reelected. And so there are countless times when they have incentives to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage the political process.”

Katyal noted that adopting the independent state legislature theory would lead to the nullification of “hundreds” of state constitutional provisions, a concern shared by Kavanaugh.

In order to approve this far-flung theory, “you’d have to ignore the text, history, and structure of our federal constitution as well as nearly every state constitution today,” said Katyal.

Thomas Refused to Recuse Himself in Moore

As I predicted, Thomas refused to recuse himself from the Moore case. He participated fully in the oral arguments, even cracking jokes. Title 28, Section 455 of the U.S. Code requires recusal when a judge’s spouse “is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.”

Thomas’s wife Ginni was a prominent proponent of the “Big Lie” that the 2020 presidential election was stolen from Trump. She texted former White House Chief of Staff Mark Meadows at least 29 times urging him to reverse the election results. And she falsely told Republican state legislators in Arizona and Wisconsin that the authority to choose electors was “theirs and theirs alone.” Ginni Thomas has a political interest that could well be furthered if the court adopts the independent state legislature theory in Moore. Thomas should have recused himself from this case.

The court will issue a decision in Moore by the end of June 2023.

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