Two clauses of the Constitution — one for Congressional elections and one for the selection of presidential electors — give the primary responsibility for adopting the rules governing elections to state legislatures.  The problem with these two clauses is that the U.S. Constitution does not create state legislatures.  Instead, state legislatures are created by the states themselves.  Not too surprisingly, different states structure their legislatures differently — one state (Nebraska) only has a unicameral legislature, many states allow the voters to initiate and approve legislation, each state has a different number of legislative districts, and some states have unique rules on what laws can be vetoed by governors and how many votes it takes to override a veto.

Traditionally, the Supreme Court has resolved this problem by holding that the election clauses simply refer to the legislative power of the state.  Each state is free to create its own rules about the composition of the state legislature, how many votes it takes to pass legislation, and which body gets to make certain election-related decisions (including delegating the redistricting power to independent commissions).    There has been a theory floating for years on the conservative side that these clauses establish a state legislative power that is “independent” of state law and state constitutions.  While this theory keeps reemerging, this theory has repeatedly failed to be adopted by the U.S. Supreme Court.

In the last round of redistricting, several state court (including North Carolina, Ohio, and New York) invalidated redistricing maps based on state constitutional provisions related to elections.  Initially, the North Carolina courts invalidated that’s states congressional redistricting plans.   North Carolina Republicans asked for the Supreme Court to review that decision based on the independent state legislature theory arguing that the U.S. Constitution barred state courts from interfering with the state legislature’s power under the U.S. Constitution to set election laws related to federal elections even if those laws violated the state constitution.

There was one wrinkle that occurred after the U.S. Supreme Court heard argument in the case.  As a result of the 2022 election, Republicans gained the majority on the North Carolina Supreme Court which, reopened the case and partially reversed the decision which the U.S. Supreme Court was reviewing.  It has been unclear for the past six months if that action would result in the U.S. Supreme Court dismissing the appeal.

On Tuesday, by a 6-3 majority, the U.S. Supreme Court decided that it could still address the merits of the appeal and that state courts could invalidate redistricting plans based on their state constitutions.  On the preliminary issue of whether the majority could reach the merits, the U.S. Supreme Court noted that, while the North Carolina Supreme Court had reversed itself on whether it had the authority to consider partisan gerrymander, it had not reinstated the original maps passed in 2021 by the North Carolina legislature.  As such, whether the original decision striking down those maps should be set aside was still a live issue.  (Of course, under the decision of the North Carolina Supreme Court, the legislature can simply readopt those maps, but it has not yet done so.)

Turning to the merits issue, the majority looked (as it often does) to its version of the legal framework in place at the time of the adoption of the U.S. Constitution.  Under the version adopted by the majority in this case, the judicial power was part of the legal framework in 1789. Part of the power of the judiciary at that time, as it is today, is the power to determine what the law is and to resolve factual disputes related to the application of the law.  But according to the majority, that power also included judicial review of the validity of the law.  In light of the fact that the concept of judicial review played a role in the drafting of the U.S. Constitution and debates over its ratification, the U.S. Supreme Court declined to read into the elections clause an intent to bar state courts from exercising judicial review over state legislations.

Aside from the “history” surrounding the adoption of the Constitution, the majority noted its traditional interpretation of the elections clause as merely assigning primary responsibility over federal elections to the state legislative power.  While most of those decisions involved the procedural question of who exercised the legislative power and how to determine if a law had been enacted, the majority rejected the North Carolina legislature’s arguments that, somehow, substantive restrictions in a state constitution on legislative acts are different for the purposes of the elections clause than procedural restrictions.  In part, the majority found that there was no clear line between procedural restrictions and substantive restrictions.  In part, in light of earlier cases and historical practice, the enactment of a state constitution is, itself, a legislative act, and judicial review is merely a court resolving a conflict between two separate legislative acts (the state constitution and the challenged law).

Having held that judicial review is assumed by the election clauses, the majority, of course, through a rope to the conservative activists who try to claim that state court actions that they do not like are the product of judicial activism.  Citing to Chief Justice Rehnquist’s concurring opinion in Bush vs. Gore, the majority found that federal courts could intervene if a state court decision represented a departure from the normal practice of judicial review.   In doing so, the majority declined to define how a federal court could determine if it was dealing with a state court decision that exceeded the boundary of valid judicial review (other than it was not this case).  In a concurring opinion, Justice Kavanaugh suggests that this review should be based, in part, on the state of the law prior to the decision in question.  In other words, if a state had a history of courts having the power to review redistricting maps for fairness and compliance to state constitutional redistricting principles, then a court decision striking down certain maps would probably be valid.  On the other hand, if that state had a history of rejecting such claims as not being subject to judicial consideration, then a decision to the contrary might be subject to federal review.

The fact that the U.S. Supreme Court declined to provide anything more than a vague standard for federal court intervention means that the independent state legislature theory is not quite dead.  We will certainly see Republican candidates who lose in court on dubious election claims asserting that the state court decisions are clearly improper exercises of the judicial power that overrides the rule established by the legislature.  Such claims will, of course, ignore that many state election laws are broad and vague and implicitly delegate the power to determine precise rules and practices to executive branch officials (both at the state and local level) and to the courts (when faced with disputes between candidates).  But for now, the U.S. Supreme Court has given the voters of the states (acting through their state constitutions) and the courts of those states (in enforcing those constitutions) an ability to block legislative attempts to rig elections in favor of their preferred party.