The Supreme Court is weighing a theory that could upend elections. Here's how

Some watchers of the U.S. Supreme Court breathed a sigh of relief last month after most of the justices sounded skeptical during oral arguments about a once-fringe legal theory that could upend elections across the United States.

Still, many legal scholars and voting rights advocates remain on alert for a court ruling by this summer on what's known as the "independent state legislature theory." It claims that under the U.S. Constitution, state legislatures have the power to determine how federal elections are run, without any checks or balances from state constitutions or state courts.

While the court may end up issuing a narrow ruling that broadly rejects this widely disputed idea, a court endorsement of the theory is still possible. And the court's adoption of even a limited version of it could usher in a wave of instability to the country's already beleaguered election system, including during next year's presidential race.

Here's what could happen if a majority of the justices endorse some version of this controversial theory:

It could lead to more lawsuits and bring uncertainty to upcoming elections

The case in which the theory has come up, Moore v. Harper, boils down to this: Who should have the last word on the redrawing of congressional voting districts in North Carolina — the state's legislature or its state Supreme Court, which struck down a legislature-approved map for violating the state's constitution?

On its face, the potential impact of how the U.S. Supreme Court answers that question may seem narrow.

But a ruling that sides with the Republican North Carolina state lawmakers who appealed the case would be a radical departure for the country's highest court, which has long deferred to state courts on how state constitutions should be interpreted.

And if a majority of the justices decide not to shut the theory out completely and instead adopt a less robust version, they could open the door to more U.S. Supreme Court appeals of other state court decisions about federal elections.

Every election cycle, the U.S. Supreme Court and lower federal courts could be "flooded with requests to second-guess state court decisions interpreting and applying state elections laws," warned a rare legal brief from the Conference of Chief Justices, which represents the top judges in every state.

"We're living in a moment in which these election rules really do matter with respect to turnout and control of Congress. And many state legislators are willing to do whatever it is that they can in order to further the power of their political party or of their political supporters," says Guy-Uriel Charles, an election law professor at Harvard Law School. "Whatever rules the court might set, it can expect that in many states and in many state legislatures, the boundaries are going to be pushed."

And as legal challenges push their way toward the U.S. Supreme Court, questions about whether various aspects of federal elections are legal could be left hanging in the air, adding uncertainty and making it harder for local officials to carry out ongoing elections.

An alternative solution to the case, which was discussed during December's oral arguments, could also lead to a legal mess, many court watchers warn. A number of the justices' questions were devoted to how the U.S. Supreme Court could set a standard for when it would step in to review a state court's decision about congressional elections that involves that state's constitution.

How much of a mess could be created would depend in large part on how high and clear that kind of a standard would be.

"There will be different views on when a state court has gone too far. And that is essentially the big problem with the middle-of-the road approach. It doesn't really resolve anything," says Stuart Naifeh, an attorney who manages the redistricting project at the Legal Defense Fund, which filed a friend-of-the-court brief opposing the theory.

It could make it easier for state lawmakers to ignore voting rights protected under state law

State constitutions enshrine many voting protections, such as the right to cast a secret ballot and guarantees of absentee or mail-in voting.

But some of those protections could go away in elections for Congress and for president if the U.S. Supreme Court rules that state constitutions cannot restrict state legislatures in deciding how federal elections are run, says David O'Brien, policy director for RepresentUs, an anti-corruption group that advocates for voting rights and that joined a legal brief against the independent state legislature theory.

"If we're looking at a world where those state constitutional guarantees are no longer a constraint on legislatures, then legislatures could start getting rid of things like that that we've just taken for granted for generations," adds O'Brien, who co-wrote a report on state election laws that could be affected by a Moore v. Harper ruling that adopts the theory.

While state lawmakers pushed to change election rules, whether existing state constitutional provisions should be enforced could be thrown into question.

And any state-level efforts to change the federal election process through a ballot initiative passed by a state's voters could also face more uncertainty. Reforms passed by ballot measures, such as the one that created Alaska's ranked-choice voting system for general elections, are often challenged in court.

"There's almost always litigation around the constitutionality of [these kinds of reforms]," says Anh-Linh Kearney, a research analyst at RepresentUs who co-authored the report with O'Brien. "It's pretty frequent that state supreme courts will weigh in on this."

And then the U.S. Supreme Court could be called to weigh in on a ballot initiative if the high court adopts some version of the theory.

The potential unraveling of state election law could also affect earlier state court decisions that have set how state constitutional provisions should be interpreted, including those that ban redrawing voting districts in a way that gives an unfair advantage to one political party over another, says Ethan Herenstein, an attorney at the Brennan Center for Justice at New York University School of Law, who helped file a friend-of-the-court brief against the theory and co-wrote a report on the election rules that it puts in danger.

"State courts are the only courts that are open to claims of partisan gerrymandering," explains Herenstein, in light of a 2019 U.S. Supreme Court decision. "If federal courts can't get involved to stop partisan gerrymandering and the ability of state courts to do so is constrained by a bad ruling in Moore v. Harper, that'll put the fight to end partisan gerrymandering on a slippery slope."

Ultimately, the U.S. Supreme Court's adoption of some form of the theory could pose a "real threat" to the "sovereignty and autonomy" of states and their constitutions at a great cost to voters, according to Kate Shaw, a law professor at the Cardozo School of Law at Yeshiva University in New York and co-host of Strict Scrutiny, a podcast about the Supreme Court.

"It's not that state constitutions are perfect by any stretch, but they do enshrine these democracy-related principles in a far more explicit way than the federal constitution does," Shaw says.

It could spark a legal challenge over recent reforms to the Electoral Count Act

Last month, in an attempt to avoid repeating the turmoil of the 2020 presidential election, which culminated in the Jan. 6, 2021, insurrection at the U.S. Capitol, Congress tried to clarify the process for counting Electoral College votes.

The reforms to the Electoral Count Act of 1887 specify that states must pick electors "in accordance with the laws of the State enacted prior to election day."

Richard Pildes, a professor of constitutional law at New York University School of Law, who advised the U.S. House and Senate on the reforms, says the changes were intended to underline that the U.S. Constitution gives Congress the power to control when electors have to be chosen. According to federal law, that deadline is Election Day, the last day of voting.

"When Congress says, as it has since the mid-19th century, that the electors must be chosen by the first Tuesday after the first Monday in November, that means state legislatures cannot just ignore [the popular vote] after the fact and decide they want to appoint a slate of electors," Pildes says.

Still, some other legal scholars are concerned that a U.S. Supreme Court ruling in Moore v. Harper that adopts some version of the independent state legislature theory could spur a legal challenge next year to the Electoral Count Reform Act's requirement that state laws about how electors are chosen for the 2024 presidential election must be enacted before Election Day.

"It seems like it would place a lot of doubt over Congress' power to supervise certain aspects of the state's conduct of the elections," says Jack Beermann, a professor at Boston University School of Law who has written about the process for counting electoral votes.

A potential challenge by a state's lawmakers could try to apply the theory's understanding of a state legislature's special "independent" legal status to the Constitution's Electors Clause, which says:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."

One scenario after Election Day 2024, Beermann suggests, could involve state lawmakers deciding that instead of allocating all their state's electoral votes to the state-level winner of the popular vote, the electoral votes would be split up in some other way, such as the "congressional district method" used by Maine and Nebraska.

"They could readjust the rules in order to get their preferred candidate," Beermann says, adding that a state legislature may try to argue in court that its move "would be binding, because Congress has no business telling them when they have to pass those laws" because of the independent state legislature theory.

But J. Michael Luttig — a retired federal judge who consulted with the U.S. House and Senate on the Electoral Count Reform Act and who is serving as an attorney for one of the groups challenging the theory in Moore v. Harper — points out that this kind of move would likely run up against due process protections under the Constitution's 14th Amendment.

Luttig adds that he urged Congress to underscore its power to prevent states from changing laws about the electoral count process after Election Day by including in the Electoral Count Reform Act a reference to the Constitution's Necessary and Proper Clause, which gives Congress the authority to "make all Laws which shall be necessary and proper" for carrying out its powers. A bill passed by the House in September 2022 included a mention of the clause.

"Once they added that recitation of the necessary and proper powers that reside in the Congress, then I do not believe that there's an argument around the Electoral Count Reform Act now by virtue of the independent state legislature theory, even if the Supreme Court were to adopt the most aggressive version of that theory," Luttig says.

No reference to the clause, however, ended up in the act. But Luttig adds that courts could still rely on that part of the Constitution to uphold the law.

Edited by Benjamin Swasey

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