On June 27, 2023, The Supreme Court ruled to reject the so-called independent state legislature theory, emphasizing the ability of state courts to review congressional districts passed by state legislatures and federal election rules.

The Supreme Court heard oral arguments in Timothy K. Moore v. Rebecca Harper, et al., on December 7, 2022. The case sought review of a decision of the North Carolina Supreme Court, and considered whether the Elections Clause prohibits the state legislature from making rules that assign judicial review of election regulations to the state courts, and whether the Elections Clause frees state legislatures from their state constitutional constraints.

ELC represented Professors Carolyn Shapiro, Nicholas O. Stephanopoulos, and Daniel P. Tokaji as amici curiae in support of Respondents. In their brief, submitted to the Supreme Court on October 26, 2022, the amici explore the doctrinal and practical problems adopting ISLT would cause, as it is likely to disrupt both settled structures of judicial review and the administration of elections. And while Petitioners focus singularly on congressional redistricting, ISLT threatens to sow chaos for election-related statutes of all kinds.

The amici showed that ISLT is not just a matter of the allocation of power within a state, but that it effects a massive shift from state to federal courts, creating numerous procedural and doctrinal problems for judicial review. ISLT flouts our federalist structure of governance and creates uncertainty for state officials, elections administrators, voters, litigants, and the federal courts.

Adopting ISLT would force states to run two sets of elections even when there is only one set of laws on the books, as ISLT would govern the regulation of federal, but not state, elections. ISLT is poised to hobble the decentralized way that states conduct elections, creating confusion for voters and imposing crippling administrative burdens on legislatures.

The brief detailed how ISLT is likely to create chaos and upend longstanding practices of election administration and constitutional design. ISLT may make inoperable the very functioning of our election systems and threatens to disrupt settled expectations of the relationship between federal and state sovereignty.

BACKGROUND

After the release of the 2020 Census, the North Carolina legislature passed a congressional districting plan that was a severe partisan gerrymander. Voters challenged the congressional districts in state court, under the procedures established by North Carolina statute, arguing among other things that they violated North Carolina’s Free Elections Clause. In 2022, the North Carolina Supreme Court struck down those districts.

In response to that court’s decision, the legislature proposed new, again, gerrymandered maps. As the legislature’s proposal did not remedy the constitutional violations, the state court ordered that a special master draw the remedial plan, following the procedures laid out in state law. In response, two Republican legislators sought review by the U.S. Supreme Court.

In March, the Supreme Court rejected the motion for a stay, which would have put the gerrymandered map back in place. The Supreme Court granted cert on June 30, 2022. Oral arguments are scheduled for December 7, 2022.

Petitioners’ argument is rooted in a radical theory, that calls for a reading of the Elections Clause that unmoors state legislatures from the very state constitutions that create them. Petitioners and other proponents of ISLT argue that the Elections Clause’s reference to the “Legislature” restricts the power to regulate federal elections only to the state’s legislative body. Under this theory, other branches of state government would likely be divested of their ordinary power to serve as a check and balance on the state legislature as related to the regulation of federal elections. In practice, this would mean state legislatures like North Carolina could violate the state constitution when drawing maps because state courts could not stop them.

The goal of the Brief filled by the Election Law Clinic is to articulate the implications of adopting ISLT. The amici detail how ISLT undermines our ordinary and expected processes of judicial review. It effects a massive shift from state to federal courts and leaves the federal court without any clear standards. Adoption of ISLT could decimate the conduct of elections across the country creating two sets of rules even for elections that are occurring at the same place and time. ISLT threatens to federalize election disputes effectively overburdening the federal judiciary and involving federal courts in state governmental designs, all questions the U.S. Constitution leaves up to the states.