SCOTUS rejects "independent state legislature" scheme, only two justices voice support

Tuesday's ruling means state lawmakers' decisions about federal elections can still be challenged in state courts. Thomas dissented, with Gorsuch joining him in defending the scheme.

The Supreme Court on Tuesday soundly rejected the “independent state legislature” scheme that could have cut state courts out of federal election-related court challenges, including over redistricting, in a case brought by North Carolina lawmakers.

The 6-3 decision was a relief for those who had been concerned about the democracy-changing effects the case could have wrought. Despite the significant concerns raised over the stakes of the case, only Justices Clarence Thomas and Neil Gorsuch ultimately suggested that they would take up the fringe cause.

Six justices — led by Chief Justice John Roberts — rejected the scheme. For his part, Justice Sam Alito joined a portion of Thomas’s dissent arguing that the court should not have been deciding the case at all, but took no position on ISL.

As covered here previously, the ISL scheme was indeed extreme — and oral arguments in the case this past December at the Supreme Court suggested Tuesday’s result.

The U.S. Constitution’s Elections Clause states that the “times, places, and manner” of holding federal elections “shall be prescribed in each State by the Legislature thereof,” within federal congressional limits.

The argument for ISL, such as it is, is that the constitutional provision means that state legislatures truly operate independently when making elections-related decisions. The consequence of ISL would be that state courts could have been written out of the process for considering the validity of state legislative enactments related to federal elections, including redistricting.

Chief Justice John Roberts, writing the opinion for the court’s six-justice majority on Tuesday, rejected that directly and simply: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”

Referencing “the Framers,” Roberts wrote that their “understanding” was that “when legislatures make laws, they are bound by the provisions of the very documents that give them life.”

As to a legislature’s job under the Elections Clause then, Roberts concluded:

The legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.

This is, really, all that is needed to address — and dismiss — ISL. I actually appreciated that fact that Roberts kept his discussion of ISL itself relatively brief, at 12 pages. This is not a close question, it’s not complicated, and his brevity helped to reinforce that.

Thomas, even in dissent, spent less than 8 pages defending ISL. And, while couching that brief treatment with a laughable claim — “I do not wish to belabor a question that we have no jurisdiction to decide.” — I’m not quite sure I buy that from a man who often spends 40 pages or more on solo dissents. It’s possible that there’s just not much more to say in defense of the scheme.

Which is probably why he and Gorsuch were off by themselves defending the scheme on Thursday.

Bush v. Gore, 2023 (and beyond) edition?

In a final portion of Roberts’s opinion for the court, he noted that “state courts do not have free reign,” signaling that federal courts have a place, in at least some instances, to review state court rulings in this area that go beyond “ordinary judicial review.”

This discussion circles around Bush v. Gore. Yes, that Bush v. Gore. It’s a discussion of how far is too far for a state supreme court to go when addressing federal elections — “the outer bounds of state court review,” as Roberts wrote. And, while a bit surreal to have the 2000 case come up here, it also serves as a suggestion of how narrow the scope of this federal review is or, at least, how rare it should be that such review will lead to federal court action.

This discussion led to a concurrence from Justice Brett Kavanaugh, who otherwise joined Roberts’s opinion for the court in full. Kavanaugh’s concurrence focused on his views regarding the appropriate standard for that federal review.

The court, however, did not “adopt” any “test” on Tuesday, holding that the issue raises “complex” questions and that, in any event, the North Carolina lawmakers pressing the case weren’t even claiming that the state court went too far here.

For the dissenters, Thomas, in a portion of his dissent joined by Gorsuch, warned that this issue of federal review “portends serious troubles ahead,” as federal challenges to state court decisions proliferate.

While anything could happen, it’s not clear to me that this necessarily opens any broad new claim, as even Thomas acknowledged that most cases, to the extent they come, will be “quickly resolved with generic statements of deference to the state courts.”

It is, though, certainly the opening that remains — the area where future cases could blunt the impact of Tuesday’s victory for opponents of ISL.

Mootness, or not

A significant portion of Thomas’s dissent — written for all three dissenting justices — was the more than 15 pages in which Thomas argued that the Supreme Court should not have been deciding the case at all because it is moot.

This part of Thomas’s decision is not an entirely irrational argument. As I wrote here back in April, tossing the case could have been an “easy move” to avoid ruling on the question. Thomas went further, writing that it was the only correct move for the court.

He wrote that this was “a straightforward case of mootness” due to the North Carolina Supreme Court’s decision to reverse the original decision made in the case on appeal at the U.S. Supreme Court on the question of whether partisan gerrymandering claims can be brought under the North Carolina Constitution. In the case at the U.S. Supreme Court, the North Carolina Supreme Court held such claims were allowed. In April, the North Carolina Supreme Court held such claims are not allowed.

“In short, this case is over, and petitioners won,” Thomas wrote.

An aside here before we move on. While both Roberts and Thomas discuss these dueling decisions from the North Carolina Supreme Court — decisions, again, over partisan gerrymandering claims — neither justice acknowledged reality: An election separated the two rulings, and the North Carolina Supreme Court was transformed from a 4-3 Democratic-majority court to a 5-2 Republican-majority court. That’s the only reason why the court took “a renewed look” at the issue, as Roberts put it, and why the original decision was “reexamin[ed],” as Thomas put it. That’s it.

But, because the justices don’t discuss such realities, readers of the opinions who don’t already know that are left scratching their heads as to why all this discussion of Harper I, Harper II, and Harper III.

Back to mootness. While Thomas certainly does his best to criticize the majority for holding that the case is not moot, there’s a second reality-check at play here: It’s generally possible to read most dissenting opinions that argue the court shouldn’t be hearing a case as some version of, “I lost on the merits, so we shouldn’t be deciding this at all.”

In practice, these constitutional limitations on “justiciability” — that the court can only hear “cases” and “controversies” — are rather malleable limits. While there are some cases that are clearly moot ones — like when a state executes a person before his request for a stay of execution is ruled on — a court that wants to decide an issue can generally find a way to rule that the case is justiciable.

That’s, bluntly, exactly what the majority did here, and they were right to do so. The North Carolina Supreme Court — even the newly reconstituted 5-2 Republican-led court — has issued rulings on how the state’s Constitution can be used to challenge congressional maps.

As Roberts wrote of the most recent opinion, “[T]he North Carolina Supreme Court in fact reaffirmed that it retains the authority to review congressional districting plans for compliance with state law.”

That’s certainly enough to hear the case if the court wanted to do so, and it did. Thomas just lost.