Supreme Court rejects novel legislative theory but leaves a door open for 2024 election challenges

The U.S. Supreme Court shot down a controversial legal theory that could have changed the way elections are run across the country but left the door open to more limited challenges that could increase its role in deciding voting disputes during the 2024 presidential election.

The court’s 6-3 ruling Tuesday drove a stake through the most extreme version of the so-called independent state legislature theory, which holds that legislatures have absolute power in setting the rules of federal elections and cannot be second-guessed by state courts. That decision cheered voting rights groups.

“We beat back the most serious legal threat our democracy has ever faced today,” said Kathay Feng of Common Cause, whose lawsuit challenging congressional districts drawn by North Carolina’s Republican-controlled legislature triggered the case.

But for some critics of the theory, the danger is not entirely past.

The court found that state courts still must act within “ordinary bounds” when reviewing laws governing federal elections. That gives another set of tools for those who lose election lawsuits in state courts to try to persuade federal judges to overturn those rulings.

“They’ve rejected a lot of the extreme stuff, but there is still a lot of room for ideological and partisan judging to come into play,” said Rick Hasen, a law professor at the University of California Los Angeles who filed an amicus brief in the case urging the court to reject the theory across the board.

Conservatives who had advocated for limits on the role of state courts in federal elections agreed with Hasen that the court didn’t settle the question of when, precisely, state courts need to stay out of federal elections. The issue may only get resolved in a last-minute challenge during the presidential election, they warned.

“Unfortunately, it’s going to be 2024 on the emergency docket,” said Jason Torchinsky, a Republican attorney who filed an amicus brief urging the court to adopt a more limited version of the theory.

The high court this week will decide whether to hear another case that touches on similar issues, an appeal by Ohio Republican lawmakers of a pair of state supreme court rulings directing them to draw fair congressional maps. The issue could come up in other cases where a state supreme court overturns congressional maps, such as in Wisconsin, where Democrats hope a new liberal majority on that state supreme court will reverse what they claim is a Republican gerrymander there.

The independent state legislature theory stems from the clause in the U.S. Constitution declaring that state legislatures shall set the “time, place and manner” of elections for the U.S. Senate and House of Representatives. Advocates argue that shows the founders wanted to give legislatures ultimate power in federal elections.

The theory was alluded to by conservative Chief Justice William Rehnquist in the landmark 2000 case Bush v. Gore, where he noted that that clause suggested limits on whether the Florida Supreme Court could decide who would win the state’s presidential electors.