Supreme Court justices grapple with a Republican challenge that could upend how elections are run: 'This is a theory with big consequences'

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Supreme Court justices grapple with a Republican challenge that could upend how elections are run: 'This is a theory with big consequences'
Demonstrators gather in front of the US Supreme Court on December 7, 2022.OLIVIER DOULIERY/AFP via Getty Images
  • The Supreme Court heard three hours of oral arguments on a GOP-led challenge from North Carolina.
  • North Carolina Republican lawmakers are advancing a widely debunked legal theory.
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Legal academics, advocacy groups, Republican and Democratic officials, and prominent conservative lawyers and judges have been sounding the alarm about an obscure theory that, if accepted by the Supreme Court, could upend US elections by granting state lawmakers unchecked power over creating voting rules.

The so-called independent state legislature theory contends that the US Constitution gives state legislatures the authority to draw voting maps and set election laws, without any oversight from the state courts.

But on Wednesday, during three hours of oral arguments for the case, Moore v. Harper, a majority of justices appeared reluctant to embrace it.

"What might strike a person is that: this is a proposal that gets rid of the normal checks-and-balances on the way big governmental decisions are made in this country," Justice Elena Kagan told attorney David Thompson, who represented the North Carolina Republicans that brought the challenge to the Supreme Court.

The outcome of the case could disrupt the way elections have been handled for more than two centuries, legal experts have warned.

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Kagan, an Obama appointee, delved into what she described as those "big consequences," including enabling state politicians to engage in extreme partisan gerrymandering, enact voting restrictions, and influence the election certification process. The theory recently gained attention in the aftermath of the 2020 presidential election, as former President Donald Trump and his allies launched legal bids to overturn the results.

The court's other two liberals, Sonia Sotomayor and Ketanji Brown Jackson, seemed to throw cold water on the idea as well, grilling Thompson on state legislatures' authority.

"Is it your argument that the state constitution has no role to play, period?" Jackson asked.

Three of the court's conservatives – Chief Justice John Roberts, Brett Kavanaugh and Amy Coney Barrett – likewise expressed skepticism about handing down a decision that could strip state courts' power to overturn election laws that violate state constitutions.

Barrett said adopting the North Carolina Republicans' approach would mean judges would have "notoriously difficult lines to draw."

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North Carolina House Speaker Timothy Moore has, along with other GOP members of the state's general assembly, relied on the theory to argue that the state supreme court overstepped its authority by striking down their then-newly drawn 2021 congressional map. The state supreme court ruled that the map was a partisan gerrymander that favored Republicans, deeming it a violation of the state constitution. The Republican lawmakers have called on the Supreme Court to reinstate their map by supporting the independent state legislature doctrine.

A ruling in favor of North Carolina Republicans would "ignore the text, history and structure of our federal Constitution as well as nearly every state constitution today," argued Attorney Neal Katyal, who represents the North Carolina League of Conservation Voters and Common Cause.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – also members of the court's conservative bloc, and the three widely considered the most conservative – seemed somewhat open to the independent state legislature theory.

Alito noted that in some states, supreme court judges are elected by voters.

"There's been a lot of talk about the impact of this decision on democracy," Alito said. "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?"

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Katyal responded that the process still incorporates checks and balances.

The Supreme Court is expected to hand down its decision in the case by June.

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