U.S. Supreme Court Affirms State Courts’ Role in Election Cases

For centuries, state courts have served as critical checks on state legislatures by ensuring that the laws they pass comply with state constitutions. In its late-June decision in Moore v. Harper, the U.S. Supreme Court affirmed that this traditional system of checks and balances still applies in the elections context, rejecting the radical contention at the core of the so-called “independent state legislature theory” — that state legislatures enjoy “independence” from state courts and the other branches of state government when making the rules for federal elections.

While the Supreme Court also asserted that federal courts could review state court rulings in extraordinary cases, it made clear that state courts and constitutions continue to constrain legislative overreach. Moore represents a significant victory for democracy at a time when state legislatures are moving at a near-record pace to restrict voting access.

Moore stemmed from a dispute over North Carolina’s congressional map for the 2020 redistricting cycle. The plaintiffs claimed that the plan was an extreme partisan gerrymander that violated the North Carolina Constitution. The state supreme court agreed and ordered the legislature to draw a new, fairer map. After the legislators produced a second gerrymander, the court appointed a special master to draw the lines. Unwilling to accept this outcome, two legislators asked the U.S. Supreme Court to step in and reinstate their map on the ground that the U.S. Constitution prohibits state courts from reviewing congressional districts for their compliance with state constitutions.

The legislators’ appeal was based on a hyper-literal reading of the U.S. Constitution’s Elections Clause, which directs states to make rules for congressional elections but also gives Congress overriding power to alter those rules or make entirely new ones. Under this theory, state legislatures would be the only state body that could regulate federal elections — neither governors, nor state judges, nor even state constitutions would have a say.

Had the Supreme Court accepted the legislators’ interpretation of the Constitution, voters across the country would have had no judicial remedy — in either state court or federal court — to fight partisan gerrymandering. That’s because the Court previously ruled in Rucho v. Common Cause that federal courts do not have the power to police partisan gerrymanders under the U.S. Constitution, leaving state courts and state constitutions as the only possible route forward unless Congress intervenes. But the repercussions of the wrong ruling in Moore would not have ended there. Embracing the legislators’ position would also have thrown elections into disarray, endangering hundreds of election rules put in place through ballot initiatives, state constitutions, and administrative regulations — including foundational state policies like the processes for voter registration and mail voting and basic guarantees like the secret ballot. And it would have empowered state lawmakers in an era of hyperpartisan politics to enact restrictive voter suppression laws without any state-level checks.

Writing on behalf of a bipartisan majority of six justices, Chief Justice John Roberts first determined that the Court could still decide Moore on its merits. (That issue arose during the appeal because the North Carolina Supreme Court reversed its decision prohibiting extreme partisan gerrymandering after an election changed the court’s composition.) He then surveyed historical practice and over a hundred years of U.S. Supreme Court precedent that demonstrate that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” This means that state courts can strike down state legislation pertaining to federal elections under their constitutions.

One aspect of the Court’s ruling that has attracted attention is its holding that federal courts have the power to review state court rulings in cases involving the rules for federal elections. But the Court emphasized that the federal courts can do so only when state courts overstep the “ordinary bounds of judicial review” and observed that the “questions presented in [elections disputes] are complex and context specific” — signaling that any review should be deferential and limited to rare circumstances, for the purpose of maintaining the traditional allocation of powers between courts and legislatures. The Court declined to decide whether the North Carolina Supreme Court’s opinion invalidating the state’s congressional map overstepped the border between “ordinary” and extraordinary judicial action, citing the legislators’ express concession that the “decision . . . fairly reflect[ed] North Carolina law.”

In his dissent in Moore, Justice Clarence Thomas expressed concern that the majority opinion will produce a high volume of federal litigation over state court election disputes. Given the majority’s strong and frequent emphasis on maintaining state courts’ long-established role as a superintendent of state legislatures, transforming Moore into a license for frequent federal intervention into state election disputes would require extending the opinion significantly beyond its express holding. A task for voting rights and other advocates will be to ensure that federal courts — including the Supreme Court — maintain their traditional hands-off posture.

The Brennan Center filed an amicus brief in this case.

Harry Isaiah Black is the George A. Katz Fellow at the Brennan Center for Justice.

Thomas (Tom) Wolf is Deputy Director for the Brennan Center for Justice’s Democracy Program.