The U.S. Supreme Court this week rejected a legal argument challenging the authority of state courts to overturn legislative actions governing how and when elections are held. That rejection will likely ripple into ongoing litigation over election law in Montana.
The court’s 30-page opinion Tuesday brought resolution to the high-profile case Moore v. Harper, which originated with a legal dispute over new congressional districts adopted by North Carolina’s Republican-controlled legislature in 2021. After a state court declared those maps in violation of the North Carolina Constitution, lawmakers countered that when it comes to federal elections, the U.S. Constitution vested legislatures with a policy-making authority unfettered by oversight from the state judiciaries. The argument is known as the “independent state legislatures” theory, and it’s what prompted University of Montana law professor Craig Cowie to characterize Moore v. Harper as a cutting to “the existential heart of the way we structure our society.”
“Right from the beginning I’d say this is a classic separation-of-powers, checks-and-balances argument,” Cowie told Montana Free Press shortly after the Supreme Court’s oral arguments in Moore v. Harper last December.
The Supreme Court shot down the theory in an opinion penned by Chief Justice John Roberts and joined by justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, Ketanji Brown Jackson and Brett Kavanaugh. Roberts summarized the central question as whether the U.S. Constitution’s Elections Clause insulates legislatures from the usual restraints of state judicial review when it comes to laws governing federal elections. The opinion sifted through more than 250 years of American history and Supreme Court precedent regarding constitutional powers, ultimately ruling that no such insulation exists.
“Were there any doubt,” Roberts wrote, “historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause.”
Justice Clarence Thomas authored a dissenting opinion, joined by justices Samuel Alito and Neil Gorsuch.
With that, David Becker told MTFP, the court has “ended any further questions about whether state legislatures could act with impunity without any checks and balances on their activity as it relates to elections.” Becker is the founder and executive director of the Washington, D.C.-based nonprofit Center for Election Innovation and Research and followed Moore v. Harper closely. He said the opinion marks the Supreme Court’s first definitive ruling on the independent state legislature theory — a reaffirmation of the legal status quo in America that Becker argues could not have come at a more crucial time.
“This theory was embraced by losing presidential candidates, lawyers representing losing presidential candidates, other supporters of losing presidential candidates,” Becker said. “It was really important that the court set these boundaries, these guardrails, before the next presidential election, which is what they’ve done. We’re a little more than 16 months out, and the court has said very clearly, state legislatures cannot act with impunity.”
While Moore v. Harper primarily had to do with redistricting in North Carolina, the argument underpinning the case has, as Becker indicated, made regular appearances in other litigation tied to the 2020 presidential election. Eliza Sweren-Becker, voting rights counsel at the NYU-based Brennan Center for Justice, told MTFP that the independent state legislature theory “reemerged from the wastebasket of academia” in 2020 as then-President Donald Trump and the Republican National Committee attempted to challenge pandemic-era voting policies. Lawsuits framed all-mail voting and other measures taken by state election officials and governors to prevent the spread of COVID-19 as unconstitutional on the basis that they were not approved by legislatures — the sole arbiters, the theory holds, of Elections Clause authority.
“A lot of the misinformation and the conspiracy theories around mail voting and early voting in 2020, I think, drove the litigation to challenge those policies and drove the advancement of the independent state legislature theory in that context,” Sweren-Becker said. “In nearly all of those cases, the theory was rejected, and the Supreme Court didn’t take up the theory in 2020. But in a few shadow docket writings, individual justices essentially said, ‘This is interesting. Come back to us again with a case presenting this theory.’”
In Montana, the independent state legislature theory came up last year in a lawsuit brought by the Montana Democratic Party and other plaintiffs challenging four election laws passed by the 2021 Legislature. The laws included new voter identification requirements and an end to same-day voter registration, which the case argued violated the Montana Constitution. Part of the state’s counterargument was that the Elections Clause vested lawmakers with the authority to govern the time, place and manner of federal elections.
A Yellowstone County District Court judge ruled in the plaintiffs’ favor last fall, overturning the four laws. But the sole defendant, Secretary of State Christi Jacobsen, has appealed that decision to the Montana Supreme Court. Proceedings there have just gotten underway, and a small portion of the state’s case — one page in a 100-page opening brief — argues that the four laws fall “squarely into the power conferred to the Legislature by the Elections Clause.”
A member of Jacobsen’s legal team was not immediately able to discuss the implications of the Moore v. Harper opinion on that case.
Sweren-Becker said that in the wake of Tuesday’s opinion, the Supreme Court has “foreclosed” the independent state legislature argument, making it clear that state courts have the authority to determine whether a law governing elections violates state law. She expects the foreclosure will extend to lower courts, and that such arguments are “going to falter pretty quickly in ongoing litigation.”
“I think that is a signal to litigants who are trying to advance this theory, continuing to try to advance this theory in lower courts, that there’s no wiggle room here,” Sweren-Becker said.
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