Moore v. Harper and the Independent State Legislature Theory That Lost

A legislature may write the rules for choosing a state's members of Congress. Can the state's own supreme court tell it that a rule violates the state's own constitution? That sounds like a question with an obvious answer, and the obvious answer is yes. State legislatures are creatures of state constitutions, and state courts enforce them. But in 2022 and 2023 a serious legal argument said no, and it reached the Supreme Court of the United States. It lost, six justices to three, and the way it lost tells conservatives something useful about both constitutional text and constitutional humility.

This is a post about a case, so let us proceed as a case: the text, the facts, the question, the holding, the reasoning, the dissent and what followed. And because this topic touches elections, let us say plainly what it is about. It is about who has the authority to write and interpret election rules, which is a question of structure and policy, and it deserves to be argued on those terms.

The text

Everything starts with the Elections Clause in Article I, Section 4, Clause 1:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Two things stand out. First, the power belongs to "the Legislature" of each state. Second, Congress may override that power by law. State legislatures hold the pen in the first instance, and Congress holds the eraser.

A companion provision sits in Article II, Section 1, Clause 2, which says each state shall appoint presidential electors "in such Manner as the Legislature thereof may direct." The word "Legislature" appears again.

Here is the question the theory raised. When the Constitution says "the Legislature," does it mean the lawmaking institution as limited by everything else in the state constitution, including judicial review? Or does it mean a body that acts under federal authority and so is free from state constitutional limits?

The theory at its strongest

The independent state legislature theory is a name for the second reading, and its best form deserves a fair hearing. It runs like this.

One. The federal Constitution gives the power to "the Legislature" directly. The power does not come from the state constitution; it comes from Article I.

Two. If it comes from Article I, then no state officer, whether a governor, a court or an election commission, may take it from the legislature, and the state constitution cannot limit it.

Three. The Framers chose the legislature on purpose, as the body closest to the people, and they did not trust a state's executive or judicial branch to set the rules for federal elections.

Four. Therefore a state court that tells a legislature how to draw congressional districts, or strikes down a legislative election rule on state-constitutional grounds, is exercising power the Constitution gave to someone else.

That is a coherent argument, and it has roots. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, wrote a concurrence in Bush v. Gore (2000) that leaned on Article II's language. He wrote that the text of the election laws a legislature has enacted, not the state court's reinterpretation, controls the choice of electors, and that a state court's departure from that text could raise a federal question. The concurrence also leaned on McPherson v. Blacker (1892), a case it read as leaving it to the legislature to define the method of appointing electors.

So the theory was not invented from nothing. It rested on text, on a precedent from 1892 and on a three-justice concurrence in a famous case.

The facts

The dispute that reached the Court began with the redistricting that followed the 2020 census. North Carolina gained a congressional seat. In 2021 the state legislature, then controlled by Republicans, drew a congressional map. Voters, joined by civil-rights groups, sued in state court, arguing that the map was an extreme partisan gerrymander that violated several provisions of the North Carolina constitution, including its free elections clause and its equal protection and free speech clauses.

In February 2022, the North Carolina Supreme Court, which at the time had a Democratic majority, agreed and struck the map in a case called Harper v. Hall. When the legislature's replacement map was found inadequate, a trial court imposed an interim map for the 2022 elections. The legislators then petitioned the United States Supreme Court. They argued that the Elections Clause forbade the state court from doing what it did. The Court declined to block the lower court's order in March 2022, over dissents by Justices Alito, Thomas and Gorsuch, and later agreed to hear the underlying case.

Then the facts changed. After the November 2022 election, the composition of the North Carolina Supreme Court shifted to a Republican majority. In April 2023 the new majority granted rehearing and reversed the earlier decision, holding that partisan gerrymandering claims are not something the state courts may decide. The Court held that the case was not moot and decided it on June 27, 2023.

The question

The question presented was whether the Elections Clause bars state courts from reviewing state legislation regulating federal elections for compliance with state law.

Notice how large that is. A yes would have meant that the people of a state could never use their own constitution to restrain what the legislature does in drawing congressional lines or writing ballot rules. State courts would have been shut out of an area where legislatures hold power over voters in the most direct way imaginable.

The holding

Chief Justice Roberts wrote for the majority, joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett and Jackson. The Court held that the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.

The reasoning ran on several lines.

History. The Court noted that, from the founding, state legislatures were understood to be subject to the constitutional limits of their states. State constitutions existed before the federal one, and they limited what legislatures could do. The Framers who wrote "the Legislature thereof" did not suppose that they were freeing the legislature from the state's own constitution.

Precedent. The majority pointed to a line of cases in which the Court had treated "legislature" in the Elections Clause as the lawmaking process as a state defines it. In Ohio ex rel. Davis v. Hildebrant (1916), the Court held that a state's referendum process counted as part of the state's legislative power for this purpose. In Smiley v. Holm (1932), it held that the clause did not displace a governor's veto. And in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), it upheld the use of an independent commission created by initiative to draw congressional districts, a decision five justices joined and Chief Justice Roberts, notably, dissented from. The cases share a premise: the Elections Clause contemplates lawmaking in the manner the state's constitution provides.

Marbury. Roberts invoked the oldest principle of judicial review. It is, in Marshall's words in Marbury v. Madison (1803), "emphatically the province and duty of the judicial department to say what the law is." If a state constitution limits the legislature, a state court enforcing that limit is doing what courts have done since the beginning.

Then came the limit. The Court did not give state courts a blank check. It said that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections. In other words, the Elections Clause does not exempt legislatures from state constitutional limits, but it also does not allow a state court to read the state constitution in a way that is plainly a pretext for seizing the legislature's job.

The Court declined to announce a test for where the line sits. It said only that the line exists and that federal courts may police it.

Kavanaugh's concurrence

Justice Kavanaugh wrote separately, and his concurrence is where the practical test appears. He agreed that state courts may review legislation but said the Supreme Court has a duty to ensure a state court does not exceed the bounds. He drew on Chief Justice Rehnquist's concurrence in Bush v. Gore, which asked whether a state court had "impermissibly distorted" state law "beyond what a fair reading required," and he suggested that something like that test should apply when federal elections are at stake.

This matters for a reason conservatives should relish. Kavanaugh's version asks federal courts to review state courts only for a plain departure from the text, not for disagreement with the outcome. That is a humble standard, and it points back to a method conservatives recommend generally: read the words, ask whether the court's reading is one the words can bear, and decline to substitute your own view of the better policy.

Thomas's dissent

Justice Thomas dissented, joined by Justice Gorsuch and, as to the mootness portion, by Justice Alito. His principal point was procedural. He thought the case was moot after the North Carolina Supreme Court's reversal and that the United States Supreme Court should not have reached the merits. The dissent was a case about when federal courts may decide, not an endorsement of the strongest form of the theory.

The mootness point is a fair one. Courts are supposed to decide live controversies, and the controversy had changed. Even so, the majority held that the case was not moot, because the North Carolina court's judgment enjoining the 2021 maps remained in effect and a reversal could revive those maps. You may weigh that argument as you see fit. Procedure has meaning here: a Court that decides cases only when it must is a Court that stays in its lane, though a Court that decides a case the parties have tried to walk away from may be tempted to enjoy the view from the lane next door.

What the Court left in place

Now we come to the part many readers miss. Moore v. Harper rejected the strong version of the theory, but it did not leave state courts free to do anything they like with election law.

Three points.

One. Federal courts may still review. The Court said state courts may not exceed the ordinary bounds of judicial review. That leaves a role for federal courts, however narrow, in cases of plain distortion.

Two. Congress retains power. The text of the Elections Clause lets Congress "make or alter" state election regulations for federal elections. If Congress wants a nationwide rule on districts, ballot access or deadlines, it can enact one by statute. That is a political path, not a judicial one, and it requires a majority in both chambers and a signature.

Three. The legislature still writes the rules. Ordinary state legislation on voter identification, mail ballots, early voting and list maintenance remains legislation. Courts apply it. They do not make it. A court that enforces a state constitutional guarantee against a statute is doing something different from a court that writes a new statute.

The strongest objection, answered

A conservative reader may object: "But state courts have used vague clauses like 'free and equal elections' to rewrite election law. Doesn't that prove the theory was right to worry?"

The worry is legitimate, and it explains why the theory attracted serious people. Judges who read broad clauses expansively can, in effect, draw districts and write election rules. Those who care about judicial restraint should object to that, whatever party benefits.

But the cure was worse than the disease. Four reasons.

One. The theory proved too much. If a legislature could ignore its own constitution in election matters, a state's guarantees of free speech, equal protection and open process would stop applying to the one area where abuse of power is most tempting. A legislature that draws its own districts has an obvious interest. Removing every state check on it does not protect liberty.

Two. The remedy for a court that goes too far is already available. Voters can amend a state constitution, and in most states they can choose or retain the judges. The North Carolina case itself shows it: after an election, the state court's composition changed and its doctrine changed with it. That is self-government working, messy and effective.

Three. The text does not say "free from the state constitution." It says "the Legislature thereof." A state legislature, in the founding understanding, is a body that exists under a state constitution. The theory asked for an exemption the words do not grant.

Four. Judicial humility cuts both ways. Conservatives want federal judges to leave state matters alone. A rule that has the Supreme Court supervising every state judicial interpretation of state election law would send federal judges deep into the business of the states, which is the opposite of what federalism requires. We make the broader case for state courts in State Supreme Courts Decide More of Your Life Than the Nine in Washington.

What conservatives should take from it

The lasting lesson is about method. Moore v. Harper shows the Court applying text, history and precedent to a question where one political side hoped for a particular outcome. Roberts began with the clause, looked at how the Framers' generation understood state legislatures, traced the cases and stated a limit. Reasonable conservatives can disagree with the result, as the dissenters did in part, but the reasoning is the kind conservatives claim to value.

The case also shows the cost of a clever theory. The independent legislature theory was elegant and short, and short elegant theories attract people who want a quick win. The Founders were wary of this temptation. As Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? reminds us, courts exercise judgment, not will, and a theory that makes a state's structure disappear to reach a result is a theory to watch closely.

If you care about the policy of elections, such as voter identification, list maintenance, mail-ballot deadlines and chain of custody, take the argument to your legislature. For how the courts treat the Voting Rights Act formula, see Shelby County v. Holder Asked Whether Old Data Could Still Govern the States. For why a case about structure matters more than a case about a single outcome, read Standing Explained, the Doorway Rule That Keeps Courts Out of Politics.

The case in brief

1. The Elections Clause gives each state legislature the power to prescribe the times, places and manner of congressional elections, subject to Congress, and the independent legislature theory read that as freedom from the state constitution.
2. In Moore v. Harper (2023) the Court held, six to three, that state courts may review election laws under state constitutions, as courts have done since Marbury.
3. The Court also held that state courts may not transgress the ordinary bounds of judicial review, and Justice Kavanaugh would police that line with a test echoing the Bush v. Gore concurrence.
4. The remedy for an overreaching state court is an amendment, an election or an act of Congress, not an exemption for legislatures from their own constitutions.
5. Election policy fights belong in legislatures and, where properly challenged, in courts that read the text.

What you can do: read Article I, Section 4 and your state constitution's elections article, then write to your state legislator about one election rule you want changed and why.