On Tuesday the U.S. Supreme Court rejected the controversial legal theory that could have changed the way elections are run across the country, and many who feared a repeat of the election chaos that ensued in 2020 heaved a sigh of relief.
The court’s 6-3 ruling struck down the most extreme version of the so-called independent state legislature theory, which holds that legislatures have absolute power in setting the rules of federal elections and cannot be second-guessed by state courts—a theory that in effect can create a tug of war between State and Federal legislatures over how to run elections, and whose latitude of interpretation can lead to challenges brought by disgruntled losers.
The theory stems from the clause in the U.S. Constitution declaring that state legislatures shall set the “time, place and manner” of elections for the U.S. Senate and House of Representatives. Advocates argue that shows the founders wanted to give state legislatures ultimate power in federal elections.
As Republicans have gained more power in state legislatures, the theory has become more popular on the right. In the most extreme case, some Trump legal advisors in late 2020 wanted to use the theory to let state legislatures replace electors won by Biden with Trump-voting ones. They argued that any changes to voting procedures that year were improper if legislatures didn’t sign off on them and that legislatures should have the power to declare the winner of presidential races.
The court’s decision against its most extreme interpretation was cheered by voting rights groups. But the win is not as clear-cut as one might think, and the danger of election chaos is not over. The wording of the ruling left the door open to more limited challenges that could increase the theory’s role in deciding voting disputes during the 2024 presidential election.
“We beat back the most serious legal threat our democracy has ever faced today,” said Kathay Feng of Common Cause, whose lawsuit challenging congressional districts drawn by North Carolina’s Republican-controlled legislature triggered the case.
The court found that state courts still must act within “ordinary bounds” when reviewing laws governing federal elections. The ambiguity of the phrase gives another set of tools to those who lose election lawsuits in state courts to try to persuade federal judges to overturn those rulings.
“They’ve rejected a lot of the extreme stuff, but there is still a lot of room for ideological and partisan judging to come into play,” said Rick Hasen, a law professor at the University of California Los Angeles who filed an amicus brief in the case urging the court to reject the theory across the board.
Conservatives who had advocated for limits on the role of state courts in federal elections agreed with Hasen that the court didn’t settle the question of when, precisely, state courts need to stay out of federal elections. The issue may only get resolved in a last-minute challenge during the presidential election, they warned—an unfortunate eventuality that litigating the independent state legislature theory was meant to avoid.
“Unfortunately, it’s going to be 2024 on the emergency docket,” said Jason Torchinsky, a Republican attorney who filed an amicus brief urging the court to adopt a more limited version of the theory.
The high court this week will decide whether to hear another case that touches on similar issues, an appeal by Ohio Republican lawmakers of a pair of state supreme court rulings directing them to draw fair congressional maps. The issue could come up in other cases where a state supreme court overturns congressional maps, such as in Wisconsin, where Democrats hope a new liberal majority on that state supreme court will reverse what they claim is a Republican gerrymander there.
