The Supreme Court turned away the GOP redistricting challenges on Monday, largely on procedural grounds. But at least four justices embraced the “independent legislature” theory to some degree, which would consolidate power over election administration in key states with GOP-dominated state legislatures, from the ability to draw district lines unchallenged to passing new restrictions on voting. Taken to its extreme, some proponents of the theory argue it would give legislators power to override the choice of presidential electors after voting in their states.
Even if five justices signed on to a version of the independent legislature theory, it is unclear how far reaching a ruling will be, said Rick Hasen, an election law expert at the University of California, Irvine School of Law who does not support the theory. “There’s a lot of potential for nuance here,” he said. “Even if you had a majority of justices that agreed that there’s something to this theory, they might not agree that a particular state has violated it.”
But if they took “the most maximalist position, it would be an earthquake in American electoral power,” Hasen said before Monday’s decision.
And since the Court declined to overturn the redistricting maps for other reasons, the theory is still waiting for a full test of just how far it could go ahead of the 2024 election.
The theory has its roots in the most famous elections-related Supreme Court case this millenium: Bush v. Gore, along with a related ruling. Then-Chief Justice William Rehnquist argued in a concurring opinion that, under Article II of the Constitution, state legislatures had near-unchallengeable authority to decide how presidential electors were appointed, and he wrote that federal courts may need to step in to make sure “that post-election state court actions do not frustrate the legislative desire.”…
“Some provisions of the Constitution are subject to reasonable debate. Others are not,” read a friend of the court brief from the Republican National Committee, the National Republican Congressional Committee and the North Carolina Republican Party in a case where state Republican legislators unsuccessfully sought an emergency order to stay the court-drawn maps.
“Absent from the constitutionally mandated order of authority is any role for the state judiciary,” the briefing continued. “Notwithstanding this omission, certain state and commonwealth courts have taken it upon themselves to appropriate the processes that belong to the politically accountable branches of government.”