DALLAS — Experts and legal scholars across the country -- from conservatives to liberals -- stood up and took notice when the U.S. Supreme Court recently heard arguments in North Carolina's Moore v. Harper case and decided to examine an obscure doctrine known as the independent state legislature theory (ISLT).
If the justices rule in North Carolina's favor and legitimize the theory, many of those same experts say it would upend hundreds of years of constitutional law, and dramatically restructure the relationship between state legislatures and state Supreme Courts.
"I think the fact that the court took this case at all... is a pretty aggressive and pretty activist step by the court," University of Texas School of Law professor Stephen Vladeck told the Jasons on this week's episode of Y’all-itics. "But I think they can walk away from the cliff. I actually think this might be the rare example for this court of the justices coming to the ledge looking over the cliff, and not necessarily liking what they see."
Constitutional law expert Vladeck said that, even though it sounds complicated, confusing and esoteric, everyone should be paying attention to this decision, which is expected in June 2023.
Vladeck told us the simplest way to think about the theory is in terms of the unprecedented power it would grant state legislatures.
The decisions made by those lawmakers, in terms of voting in federal elections and drawing federal congressional districts, would usurp all other decisions made by the rest of the state government system, even a state Supreme Court. If this theory is upheld, even if a state Supreme Court ruled a legislature’s actions violated the state’s constitution, the legislature’s decision would still stand supreme.
And Vladeck said that’s why he’s moderately obsessed with this case.
"To be clear, they didn't have to take this case," Vladeck said. "There was no split among lower courts. There was no lower court that embraced the theory. And so, this didn't necessarily meet the classic criteria for when the U.S. Supreme Court intervened. That's why folks like me, y'know, sort of rang alarm bells when they took this case -- because it said... in sort of big bright flashing letters, 'Actually, we're interested in this theory.'"
In the Moore v. Harper case, Republican North Carolina lawmakers are the petitioners. That state’s Supreme Court struck down a redistricting map they drew, ruling that the maps violated the state's constitution because of partisan gerrymandering. Upset by the decision, Republicans turned to the U.S. Supreme Court, using the ISLT as a basis to overrule their own state Supreme Court. The independent state legislature theory was considered and rejected by the U.S. Supreme Court during the 2000 Presidential Election aftermath in Bush v. Gore.
"So, the concern is not that democracy is sort of hanging in the balance based on this decision," Vladeck said. "It’s that it would empower state legislatures in future presidential elections to act in ways that are overtly anti-democratic."
Supporters of the theory argue two specific clauses in the U.S. Constitution – Article 1, Section 4 and Article 2, Section 1 – gives state legislatures, and only state legislatures, the power to decide the “times, places and manner” of congressional elections and the manner in which states choose presidential electors.
But many legal experts, constitutional scholars and lawmakers from the right and the left have come together against the theory.
Several prominent conservatives have filed "friend of the court" briefs against ISLT, arguing it would unleash election chaos across the country and, in essence, invalidate 50 state constitutions.
And, in an unprecedented first, the Chief Justices of all 50 states’ Supreme Courts signed a friend of the court brief urging SCOTUS not to endorse the theory.
“When Chief Justice Hecht (Texas) and the Chief Justice of California are agreeing with each other, that should tell people something,” Vladeck observed.
Should the U.S. Supreme Court endorse the independent state legislature theory, Vladeck says there is a "constitutionally easy" fix -- if Congress could get past the politics. Listen to our latest episode of Y’all-itics to learn more. Cheers!