- The Supreme Court's conservative supermajority has massively reshaped American society and law.
- The court could upend American democracy in a crucial election case it's taking up next term.
- "It would be an extraordinary power grab by political actors were it to be upheld," one expert says.
The US Supreme Court over the past few weeks has massively reshaped American society with a flurry of opinions that, among other things, ended five decades of federal protections for abortion rights, curtailed gun restrictions, and limited the federal government's regulatory power.
The court's rulings this term demonstrate, more clearly than ever, the real-world consequences of former President Donald Trump's influence in cementing a conservative supermajority on the Supreme Court.
And the court's Trump-shaped supermajority is just getting started.
Next term, it has the opportunity to blow up over 100 years of election jurisprudence by embracing a radical legal theory that would concentrate power over elections to increasingly polarized and gerrymandered state legislatures. (Gerrymandering is the drawing of legislative district lines to favor one political party over the other.)
The court announced on Thursday that next term, it will hear Moore v. Harper, in which North Carolina's Republican state legislators are asking the court to overturn a decision by the North Carolina supreme court striking down the legislature's congressional maps for unfairly biasing Republicans and ordering a map drawn by outside special masters to be used for the 2022 elections.
"We all know both parties gerrymander when they can, and the courts stood up this year in a way they had not before," Michael Waldman, president of the Brennan Center for Justice, told reporters on a Thursday call. "This would cut that off at the knees."
State legislatures holding unlimited power could be 'checkmate' for 2024
North Carolina House Speaker Tim Moore is petitioning the court to reverse the state supreme court's decision under a once-obscure legal notion that penetrated the mainstream in 2020 known as the independent state legislature (ISL) doctrine or theory.
The Elections Clause in Article I of the Constitution states that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The ISL theory claims that the clause only gives state legislatures and no other authorities — like courts, executive officers, or election officials — jurisdiction over redistricting and election laws.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated their willingness to seriously consider the argument behind the theory in cases over the 2020 election and North Carolina's redistricting that came to the court through the emergency appeals process, or "shadow docket."
The Supreme Court adopting the theory would have far-reaching implications beyond redistricting, upending nearly every aspect of how American elections are run.
It could gut the ability of state courts to rule on all kinds of election laws, of governors to issue executive orders on election laws, and of election officials to interpret election rules and issue regulations, as many of those bodies did during the COVID-19 pandemic.
In a worst-case scenario, it could even enable a legislature to meddle with or subvert a presidential election.
"It's entirely possible that the courts have the votes to endorse a theory which would hand state legislators unfettered control over election administration, which would be checkmate for the 2024 election," Gaby Goldstein, the co-founder of Sister District, a progressive group that focuses on state legislatures, told Insider, citing existing GOP majorities in swing states like Georgia, Pennsylvania, and Wisconsin.
Indeed, Trump himself and his allies heavily relied on the theory in their aggressive bid to overturn the 2020 election, arguing that courts and governors striking down or shaping election laws were reason to invalidate entire states' election results in states that voted for President Joe Biden.
But legal experts argue that the notion is at direct odds with the express intent of the Constitution's architects, particularly James Madison, to restrain the unchecked power of state legislatures over elections with the Elections Clause.
"He said, 'whenever the state legislatures have a favorite measure to carry, they will take care of so as to mould the regulations to favor the candidates they wished to succeed," Waldman said, invoking Madison. "We couldn't say it better. We think this is a dangerous notion. And it would bring chaos to our election laws."
He added: "It would be an extraordinary power grab by political actors were it to be upheld."
'ISL is as made up as anything I know of in constitutional law'
Helen White, counsel at Protect Democracy, told reporters that the strict and narrow reading of "legislature" posed by proponents of the theory "is not at all supported by the Constitution's text, the original understanding of the Constitution, 200 years of election practice here, and the Supreme Court's own precedent as recently as 2019."
In the past decade, the court rejected an ISL argument in batting down a challenge to Arizona's independent redistricting commission in 2015 and ruled in Rucho v. Common Cause in 2019 that partisan gerrymandering cases are non-justiciable political questions off-limits for federal courts and must be resolved by state courts.
But the court siding with North Carolina would take away the ability of state courts too to serve as a check against partisan gerrymandering of their elected representative bodies.
"The Court would look so bad if it embraced ISL after having thrown Roe under the bus for being made up," said Vikram Amar, the Dean and Iwan Foundation professor of law at the University of Illinois. "ISL is as made up as anything I know of in constitutional law. ISL is not only inconsistent with the deep premise of federalism, it's exactly backwards."
Waldman too argued that accepting the theory would not only practically "sow chaos" but represent an "extraordinary rebuke" of the court's conservatives' stated commitment to originalism.
"To say that because the word 'legislature 'appears in a provision designed to curb the legislature means that the legislature has all the power is Amelia Bedelia, not legal theory," Waldman said. "It's nutty. It's a deliberate, comical misreading of what the text, structure, history, purpose, meaning, and goals of the Constitutional provision are. And it's as clear as any case they will hear next year."
White said that the independent state legislature theory isn't best described as one singular theory, but as encompassing many possible lines of argument. The Arizona case the Supreme Court ruled on in 2015, for example, challenged the creation of a redistricting commission by a direct ballot initiative improperly iced out the legislature.
Because of that complexity, she argued that the court adopting some version of the theory wouldn't necessarily give state legislatures "a license to coup" in 2024, as some have suggested, but could be "potentially extremely damaging to elections" and "cause a lot of chaos."
The court could translate 'fever dream into law'
Thomas Wolf, deputy director of the Brennan Center's democracy program, noted that it takes just four justices to agree to hear a case but five to rule, saying, "the fight is not over."
Amar said that the shadow docket, where three conservative justices have expressed openness to the ISL, don't provide the same level of rigor and review as a case heard on the merits, which carry oral arguments, legal briefs, and "the glare of public scrutiny."
"It's a lot easier to shoot off your mouth in a concurrence or dissent," he argued. "It's going to be really hard if anyone sits down to try to write an opinion embracing ISL."
Wolf argued too that the court taking away state judicial review of election laws would put it in the undesirable position of sorting out messy state-level election disputes it may not want to resolve.
"I'm not sure that they care," Goldstein told Insider. "Anyone clinging to a very nostalgic notion of the court is laboring under a false pretense at this point. This Court has shown its willingness to step away from precedent into decisions and territory that jeopardize its credibility."
In his majority opinion striking down Roe v. Wade, Alito argued that their decision "allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office," adding: "Women are not without electoral or political power."
But the court taking away guardrails against gerrymandering and political manipulation over elections in Moore could erode or outright quash the ability of women and all citizens to choose their representatives under fair districts.
"We will all suffer if the court follows through with transforming the North Carolina legislators' fever dream into law," Wolf said.