By Marilyn Odendahl

The Indiana Citizen

June 28, 2023

In a 6-3 ruling, the U.S. Supreme Court rejected the argument that state legislatures can set the “times, places and manner” of congressional and presidential elections without interference from the state courts.

Chief Justice John Roberts wrote the majority opinion in Moore v. Harper which was issued June 27. The six justices, including Hoosier Amy Coney Barrett, concluded the so-called independent state legislature theory was contrary to history of the country’s founding and ran afoul of judicial precedent. Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented, arguing since the U.S. Constitution gives state legislatures the power to run federal elections, the constituents in the states do not have any ability to dictate the laws covering those elections.

Women4Change Indiana applauded the majority decision. The nonprofit, which was the only Hoosier organization to submit an amicus brief to the Supreme Court in this case, opposed the independent legislature argument, calling it dangerous to the foundations of democracy.

“We are thrilled that SCOTUS ruled against independent state legislature theory and decided that state legislators have to abide by their constitution,” Women4Change said in a statement. “This is a great precedent for fair maps, and we view the outcome of Moore v. Harper as a victory for democracy and voting rights.”

The case originated North Carolina and stemmed from a dispute over the 2021 redrawn congressional and state legislative districts.

In early 2022, the North Carolina Supreme Court tossed the redrawn districts, ruling the new map was an unconstitutional partisan gerrymander. The North Carolina General Assembly developed a “remedial congressional map” but the state superior court, instead, adopted the map developed by three court-appointed special masters.

Turning to the U.S. Supreme Court, North Carolina legislators argued by prohibiting the use of the 2021 map, the state supreme court violated the independent state legislature theory.

The theory holds that because the U.S. Constitution’s Election Clause vests statehouses with the authority to regulate federal elections, the state courts cannot override state legislatures’ decisions about the electoral process.

Dismissing the theory, Roberts asserted the Elections Clause does not “carve out an exception” to judicial review. Moreover, he pointed to numerous previous rulings from the Supreme Court that have “long rejected the view” offered by the independent state legislature theory.

“The argument advanced by the defendants and the dissent also does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life,” Robert wrote for the majority. “…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.”

Thomas was most angered by the Supreme Court’s decision to accept and rule on Moore. Joined by Gorsuch and Justice Samuel Alito, Thomas claimed the case was moot and the majority’s ruling can no longer affect the lower court’s judgment.

However, Thomas addressed the independent legislature theory and, along with Gorsuch, did not find the majority opinion persuasive. He countered the U.S. Constitution gives state legislatures the power to oversee federal elections and the people of the state cannot curb that power.

“(North Carolina’s) argument, however, is that legislation about the times, places, and manner of congressional elections is not limited by state constitutions—because the power to regulate those subjects comes from the Federal Constitution, not the people of the State,” Thomas wrote. “Right or wrong, this question has nothing to do with whether state courts have the power to conduct judicial review in the first place. To say that ‘state judicial review’ authorizes applying state constitutions over conflicting Elections Clause legislation is simply to assume away (North Carolina’s) argument.”

Hoosier voice

Several organizations, legal scholars and public officials submitted amici briefs either supporting or opposing the independent state legislature theory. One brief championing the doctrine was filed by the Attorney General of Arkansas with 12 other attorneys general joining but Indiana was not among them.

Women4Change Indiana argued that accepting the independent legislature doctrine would upend Indiana’s separation of powers created by the state’s constitution. While the courts have recognized the Indiana General Assembly’s constitutional authority, the judiciary has provided a check to legislative power through the ability to invalidate state laws as unconstitutional.

The brief asserted that preserving the balance of power has become even more critical as the Indiana Statehouse has gerrymandered the legislative and congressional districts. As a result, Hoosiers have been deprived of voting power and fair representation, leaving few avenues to check legislators’ power.

“Indiana’s judiciary is Hoosiers’ last line of defense against a state legislature willing to disregard them for political power,” the brief stated. “The Court should preserve that last line of defense and continue to read the Elections Clause as allowing state judiciaries to check state legislatures when they exceed state constitutional limits.”

The brief from Women4Change was prepared by attorneys Harmony Mappes, Stephanie Gutwein and Jeffrey Justman, all of Faegre Drinker Biddle & Reath, along with attorney Jay Yeager.

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