Closing a Key Loophole to Nullify 'Independent State Legislature Theory'

On December 7, the Supreme Court will hear oral argument in Moore v. Harper, a case which could dramatically and dangerously rewrite American democracy.

In this case, a North Carolina redistricting plan that was rejected by the state's Supreme Court is being defended by North Carolina legislators who claim the state Court's decision violates the so-called "independent state legislature theory."

Considered by many to be a radical, fringe theory, the independent state legislature claim is now before the Supreme Court and, if adopted, would prevent state courts from reviewing laws passed by state legislatures to redistrict congressional seats, or to establish voting rules or other laws applicable to federal elections.

This would eliminate the right of a state Supreme Court to review whether state laws dealing with federal elections comply with the state's own constitution.

It is strange that the Supreme Court would even consider this case, given a decision just three years ago, when the Court spoke directly to this issue.

In Rucho v. Common Cause, the Court majority, including Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh, rejected a request to find a North Carolina redistricting plan to be an unconstitutional partisan gerrymander under the U.S. Constitution.

The Court majority pointedly noted that there were other remedies that could be pursued including state courts reviewing the actions taken by state legislatures.

The majority opinion written by Chief Justice Roberts stated: "Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply."

Given the radical path the Supreme Court majority has been taking, however, there are no guarantees that this Court will practice what it preached just a few years ago.

There has also been a widely stated misconception about the potential impact of a Court ruling -- that if the independent state legislature theory is adopted by the Supreme Court, state legislatures will be given carte blanche to override the choice of voters in a presidential election.

This is not correct.

Under Article II of the Constitution, Congress is empowered to choose the "time" when presidential electors will be chosen. Federal law implementing the Article has established that electors are chosen on Election Day, the first Tuesday after the first Monday in November.

Furthermore, every state has delegated to the voters the power to choose the President by voting for the presidential electors of the candidate they choose. While a state legislature could take away this power prior to Election Day, it is politically unfeasible and would lead to a national firestorm. In any event, it is unrelated to the independent state legislature theory.

Once electors are chosen on Election Day, state legislatures do not have the authority to name their own presidential electors--apart from one loophole contained as part of the 19th-century Electoral Count Act.

Under that loophole, if a state legislature decides, for whatever reason, that voters have "failed" to make a choice on Election Day, the state legislature can name its own electors. This dangerous loophole was brought into sharp focus by former President Trump's effort to overturn the 2020 election.

Congress, however, is well on its way to closing that loophole.

Legislation that closes the "failed choice" loophole and contains other reforms has passed the House and similar legislation was reported out of the Senate Rules Committee last month. The Senate legislation has strong bipartisan support--including 15 Republican sponsors--enough to overcome a filibuster. The bill is expected to be voted on by the full Senate in the upcoming lame-duck session.

If this legislation passes and the loophole is closed, state legislatures will have no authority to override the presidential choice of the voters.

Federal law, not state legislatures, will control here, regardless of how the Supreme Court decides the Moore case.