by IRWIN STOTSKY
PHOTO BY JOSHUA PREZANT
In the 2022-23 term, the U.S. Supreme Court issued a number of questionable and harmful decisions. It ruled that the Biden Administration had overstepped its authority to wipe out more than $400 billion in student debt, dashing the hopes of millions of borrowers and imposing new restrictions on presidential power in the absence of clear congressional authorization. The decision, the last of a tumultuous term, was part of a trio of “muscular” and outrageous rulings issued on June 29 and 30, 2023, on which the court divided 6 to 3 along partisan lines. In addition to rejecting the loan forgiveness program, the court’s conservative majority also sharply limited affirmative action in higher education, in a majority opinion that disingenuously invoked stare decisis to support its ruling, and by creating standing where none existed, reached out and dealt a serious blow to gay rights. Indeed, the court held that Colorado’s public accommodation law, which prohibits businesses from discriminating on the basis of sexual orientation, violated the free speech rights of a web designer who refused to create wedding websites for same-sex couples based on her religious beliefs because the law compelled her to express a message with which she did not agree.
In the most important decision of the term, which some commentators claim may be “the most important case for American democracy in the almost two-and-a-half centuries since America’s founding,” the court correctly rejected the so-called “independent state legislature theory.” Rather than resolving the many questions raised by this theory, however, the decision still leaves important issues open for future determination, including the broader issue of its decision for democracy and voting rights.
The ISL theory claims that state legislatures have exclusive power to regulate federal elections within a state without any interference from state constitutions, courts, governors, or other bodies. The ISL theory stems from a narrow reading of the Elections Clause of Article I, § 4, Clause 1: “The Times, Places, and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing [sic] Senators.” Proponents of ISL theory also support their interpretation with the Presidential Electors Clause of Article II, § 1, Clause 2, which states, in part, that “each state shall appoint, in a manner the legislature thereof may direct.” Those who support ISL theory interpret the term “legislature” to refer solely to state legislatures to the exclusion of all traditional checks and balances. Thus, the theory asserts that state legislatures can enact and implement federal election regulations even if they directly conflict with state constitutions without constraint or review from state courts or governors.
In Moore v. Harper, the Supreme Court, in a 6-3 opinion authored by Chief Justice Roberts, rejected the ISL theory, ruling that the “Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” Even with the thorough analysis he engages in, his argument fails to list the consequences of the opposite result, a result that would allow state legislatures freedom to disregard state constitutional provisions or even
governor vetoes.
The ISL theory is antithetical to the framer’s intent, text, fundamental design, and architecture of the Constitution. Indeed, the proponents of ISL theory offer little proof that the framers intended to foreclose state judicial review. There is overwhelming evidence in the text and structure of the Constitution and in the pre- and post-ratification history that the framers understood and assumed that there would be judicial review of the legislatures’ redistricting decisions. This is as would be expected given the framers’ obvious acceptance of the judicial role in the states’ governments and the natural partisan tendencies of state legislatures. But even more important to the rejection of ISL theory are the consequences of accepting that theory. If the court had agreed that there is an ISL theory, it would confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast votes for president and vice president on behalf of the voters of the states. It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by state courts, including the states’ highest courts under state constitutions. Moreover, the ISL theory was at the heart of Trump’s effort to overturn the 2020 presidential election. If the Supreme Court had accepted the ISL theory, as applied to the Electors Clause, the court could have decided that it enabled the state legislatures to appoint electors who would cast their votes for the former president, even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states.
The chief justice found that state courts “do not have free rein.” He argued that in interpreting state law in this area, state courts may not unconstitutionally intrude on the role reserved to state legislatures by Article I, Section 4, of the U.S. Constitution. Federal courts must ensure that state court interpretations of the Elections Clause do not evade federal law. But his opinion does not outline a standard for federal courts to use in such cases, which leaves an opportunity for the Supreme Court to narrowly interpret state court powers. As Justice Thomas suggests, the proposed test in Chief Justice Robert’s majority opinion (and the other tests listed in Justice Kavanaugh’s concurrence) is so broad that the court is free to limit state court interpretations in a manner harmful to the people’s voting rights when deciding whether the state court has overstepped its boundary in analyzing and deciding Election Clause issues. The argument that federal courts “must not abandon their own duty to exercise judicial review” authorizes courts to determine that state courts have overstepped their boundaries in Election Clause cases and even in state court interpretations of state constitutions. This will allow the court to overturn or change procedures for voting, which may be harmful to our democracy. The court’s decision in Moore has not yet freed our nation from partisan politics in the form of Supreme Court decisions inimical to democracy.
Irwin P. Stotzky, professor of law, has published numerous articles and books on democracy and human rights, criminal law and procedure, and the role of the judiciary in the transition to democracy. For over four decades, he has represented Haitian and other refugees on constitutional and human rights issues in many cases, including several in the U.S. Supreme Court.
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