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A broken clock, and an inconsistent Supreme Court, can still occasionally be right. Take the high court’s recent rejection of an outlandish legal theory, increasingly popular in some Republican circles, that would shield state legislatures from state judicial review on federal election matters.
Conservative and liberal members of the court came together in late June to refute an expansive version of the so-called “independent state legislature” theory, at play in a case involving congressional map redistricting in North Carolina. This theory essentially (and dangerously) argues that state lawmakers have the ultimate say over election law and are exempt from state judicial oversight in matters of federal elections and redistricting.
This theory is based on a questionable reading of the U.S. Constitution’s Elections Clause and its delegation of election authority. And it would usher in an untenable scenario where state legislatures could basically do whatever they want in crafting federal election-related laws without oversight from state courts. That feels like a lawless approach to legal authority, and thankfully, the Supreme Court rejected this extreme argument last month.
“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Chief Justice John Roberts wrote for the 6-3 majority. The majority did find that there are limits to state courts’ review of election-related laws, and emphasized that federal courts can step in when there are conflicts between state and federal law, without setting a specific standard for federal court involvement.
Even with some caveats, this ruling still amounts to a strong rebuke of the independent state legislature theory in its broad form.
“This is a very forceful repudiation of the premises of the independent state legislature idea,” University of Illinois law school dean Vikram Amar told NPR. Amar and several other scholars filed a brief related to the case. “What this case does is it reaffirms the flexibility that states have to confer power in different institutions in a way that deals with the challenges confronted by modern democracy.”
This rebuke, while partial, remains an important one. The independent state legislature theory has become concerning en-vogue as part of Donald Trump’s factually challenged claims and legal efforts to overturn a 2020 election that he lost (and still wrongly claims that he won).
This isn’t a bad legal theory because Trump and his legal advisors have supported it. Rather, it’s an inherently bad legal theory, and it’s even worse that such a flawed theory has been gaining traction around Trump and in the Republican Party generally. The fact that both conservative and liberal justices on the Supreme Court were able to see through these flaws was an encouraging sign amid a flurry of other concerning rulings from the nation’s highest court.
