The Supreme Court ended ‘independent state legislature theory.’ Here’s what that means for NH.

By ETHAN DEWITT

New Hampshire Bulletin

Published: 07-06-2023 11:48 AM

Last week, the U.S. Supreme Court dealt the final blow to “independent state legislature theory.” 

Amid blockbuster decisions around affirmative action and student debt relief, the U.S. Supreme Court also ruled on a legal theory that experts said could disrupt the checks and balances over each state’s election laws. 

In Moore v. Harper, a 6-3 majority ruled that the theory should be quashed. But what was the theory? And what does the decision mean for New Hampshire? 

We asked two New England law professors, Lawrence Friedman of the New England School of Law and John Greabe of the University of New Hampshire Franklin Pierce School of Law, to weigh in. 

What is the independent state legislature theory?

The independent state legislature theory suggested that state legislatures have exclusive control over their state’s election laws, and that state courts do not have the power to overturn those laws. 

State courts are ordinarily able to conduct “judicial review” over state laws, a process by which the courts can determine whether those laws breach the state constitution. Proponents of the theory say that election laws should be treated differently and exempted from that review. 

This time, Moore v. Harper centered around the North Carolina Supreme Court’s ruling in 2021 that the congressional districts drawn by the Republican-led legislature unfairly benefitted Republicans. The plaintiff, the General Assembly of North Carolina, argued that the North Carolina Supreme Court did not have the authority to weigh in due to the independent state legislature theory. 

But the U.S. Supreme Court disagreed, citing the seminal 1803 case of Marbury v. Madison, which established the ability for a court to find the actions of the legislative or executive branch unconstitutional. 

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“Pretty much the Moore majority put the last nail in the coffin of this idea that legislators can proceed without any kind of judicial review from the state courts,” said Friedman. 

“I think, for now, the most aggressive form of the theory has been put to rest,” agreed Greabe. 

Where did the theory originate?

The legal debate dates back at least 20 years, to the aftermath of the U.S. Supreme Court’s decision in Bush v. Gore that tipped a contested presidential election to Republican George W. Bush. In that case, the U.S. Supreme Court overrode the Florida Supreme Court’s analysis over how Florida election laws should be interpreted.

After that decision, some lawyers argued that because the Elections Clause of the U.S. Constitution delegates the power to run federal elections to states, only state legislatures should have control over how to run the elections. 

In recent years, the theory has been floated as a way to stop courts from overturning legislative maps deemed to be “gerrymandered,” or drawn to benefit one party. The U.S. Supreme Court ruled against the ability for federal courts to overturn gerrymandered maps in Rucho v. Common Cause in 2019, but state supreme courts – such as North Carolina’s – may still do so. 

The theory also became popular in the wake of the 2020 presidential election, when President Donald Trump falsely claimed victory and urged legislatures in states that he lost to override the results and send representatives to the Electoral College that would vote for him. The independent state legislature theory could have prevented courts from stopping that action, some argued.

What does the Supreme Court decision mean for state supreme courts?

It’s complicated. While the ruling affirms that state courts are not barred from conducting judicial review over state election laws and redistricting maps, it does not mean state courts have unlimited power.

State supreme courts are still bound by the requirement that their decisions over state voting laws are compatible with the Elections Clause in the U.S. Constitution, the Moore v. Harper majority stated. And federal courts may still override state court decisions if those courts are deemed to be acting outside that clause, the justices added. 

Moving forward, the new legal question is how much federal courts will be allowed to rein in state supreme courts over those decisions. 

“The Supreme Court in its own inimitable style said that’s not a question we’ve been asked, and we’ll save that for another day,” said Friedman. 

The answer is something that will have to be hashed out in future case law, Friedman and Greabe agree.

“It’s definitely a warning from the court to state courts that there will be federal review of some sort, as took place in Bush v. Gore,” said Greabe. 

“We don’t know the legal standard that’s going to be applied by the court. The way in which it’s phrased in (the Moore) opinion makes it sound like there’s gonna be considerable deference given to state courts. But, you know, who knows?”

Will this decision affect New Hampshire?

In the short term, no. 

The ruling preserves the New Hampshire Supreme Court’s ability to rule on whether state election laws are compatible with the state constitution. Currently, there are no cases before the court that could have been upended if the Supreme Court had ruled differently. 

But a ruling in the other direction would have had long-term effects, Friedman noted. “It would have disabled the New Hampshire Supreme Court from reviewing any determination of the state Legislature in regard to how elections are run,” he said. 

That’s a power that New Hampshire courts have used in recent years. In 2021, the state Supreme Court struck down a 2017 law, Senate Bill 3, that required voters to produce additional proof of residency before voting. 

Before passing House Bill 1264 in 2018 – a law that eliminated a residency voting law carveout for college students – lawmakers sought an advisory opinion from the state Supreme Court to determine its constitutionality. The court held that the law was constitutional. 

What is the latest with New Hampshire’s redistricting process?

New Hampshire has finished its redistricting process. But there is still a legal challenge in the works. 

In 2022, following the 2020 U.S. Census, the Legislature passed a series of new district maps for elected politicians. Gov. Chris Sununu signed three of them into law: a new map for the five Executive Council districts, another for the 24 state Senate districts, and another for the 204 districts in the 400-member House. 

But Sununu vetoed a fourth map that divided the state’s two U.S. congressional districts, objecting to the fact that it was drawn in a way that leaned one district heavily toward Republican voters and another heavily toward Democratic voters. Because the Legislature ran out of time to pass a new map that Sununu would sign, the state Supreme Court took over the process. In 2022, the court appointed a special master to draw the districts in a way that accounted for the shifts in population. 

That map is broadly similar to the map that preceded it. 

No group has challenged the court-drawn congressional map in New Hampshire. But a group of plaintiffs are suing over the Executive Council and state Senate maps. Former Democratic House speaker Terie Norelli and other New Hampshire voters – the plaintiffs – have argued that the maps violate the state constitution’s “free and fair elections” clause because they are designed to give Republican voters greater voting power. A Hillsborough County Superior Court judge dismissed the case in 2022, holding that courts should not weigh in on the “political question” of gerrymandering, in a ruling similar to Rucho v. Common Cause

The case is close to being resolved; the Supreme Court heard oral arguments in May. But however the court rules, Greabe said not to expect the ruling to come under federal scrutiny in the federal courts. The federal review referred to in Moore v. Harper applies only to state laws that affect federal elections – not state elections for Executive Council and state Senate. 

And thanks to Moore v. Harper, the New Hampshire Supreme Court’s decision will likely be the final word.

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