Supreme Court Justice Samuel Alito pauses after swearing in Mark Esper as Secretary of Defense during a ceremony with President Donald Trump in the Oval Office at the White House in Washington, Tuesday, July 23, 2019. (AP Photo/Carolyn Kaster)

The Supreme Court has already made it exceedingly difficult for voting rights plaintiffs to successfully challenge election rules. Now, through emergency petitions involving gerrymandering, Republicans in North Carolina and Pennsylvania are asking the Court to further cabin the right to vote. If their ploy succeeds, state politicians will have virtually no checks on their authority to dictate election rules. 

The current state of the law is already bleak for those who seek to uphold the right to vote and prevent state lawmakers from imposing harsh rules that make it difficult for some voters to cast a ballot that will count. Although the Supreme Court once considered voting to be a “fundamental right,” over the past few decades the Court opened the door to greater state regulation of the electoral process. The Court offered the somewhat-bland statement in 1974 that “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” But it has twisted that phrase as it has adopted a doctrine that provides states with virtually zero oversight of their electoral schemes, even when voters are harmed. No longer does the Court robustly protect the constitutional right to vote. Instead, election law jurisprudence is one of extreme deference to states. The Court has also invoked a relatively new rule, known as the Purcell principle, that says federal courts should not invalidate state laws too close to an election—though how close is too close is anyone’s guess. The message: States can violate the right to vote for at least one election cycle. 

But state constitutions have offered voting rights advocates a meaningful avenue to challenge unfair election rules. Every state constitution (besides Arizona’s) affirmatively grants the right to vote to the state’s citizens. State founding documents go further than the U.S. Constitution’s implicit—yet still important—protection of the right to vote. Many state courts have taken their roles seriously in properly construing that language. State supreme courts in North Carolina and Pennsylvania both cited clauses that elections must be “free” (North Carolina) or “free and equal” (Pennsylvania) to strike down the gerrymanders that Republican-controlled legislatures drew in those states.

Enter the new emergency appeals to the U.S. Supreme Court. The states in these cases are making a bold new claim: that the state supreme courts have no power to review a state election law under the state constitution. Normally the Supreme Court will only resolve questions of federal law or that invoke the U.S. Constitution. These cases do neither. 

North Carolina and Pennsylvania Republicans, however, are asking the Court to intervene based on an argument known as the “independent state legislature doctrine.” Their claim, they say, is simple: The U.S. Constitution’s election clause says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” (There is similar language in Article II about presidential electors.) They read this language to suggest that the state legislature—and only the state legislature—may promulgate election rules. A state supreme court that invalidates a redistricting map or adopts its own constitutional map because the legislature has failed to act, they say, is unlawful under the U.S. Constitution because it is not the state “legislature” doing it.

Three conservative justices (Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas) mentioned this theory in their separate opinion in Bush v. Gore in 2000. At least four of the current justices embraced this theory during the litigation leading up to the 2020 election. Justice Samuel Alito, joined by Justices Thomas and Neil Gorsuch, indicated that they would have used the doctrine to declare that the Pennsylvania Supreme Court did not have the authority to extend the absentee ballot receipt deadline during a pandemic, even though the state court ruling sought to effectuate the state constitutional right to vote. Justice Brett Kavanaugh said a similar thing in a case from Wisconsin. Gorsuch also wrote to invoke the theory in a case from North Carolina that also involved the absentee ballot receipt deadline. And although Chief Justice John Roberts did not join these opinions in 2020, he indicated in a dissent in 2015that he agreed with a rule that only the state legislature can promulgate election rules. Justice Amy Coney Barrett, new to the Court in October 2020, did not rule in the 2020 election cases, so we don’t know her views. But with Thomas, Alito, Gorsuch, and Kavanaugh already on board, the Court only needs one more justice to make this theory binding precedent. 

Far from a simple argument about the text of the U.S. Constitution, however, the independent state legislature doctrine would have far-reaching consequences. It would implicitly invalidate state constitutional language that robustly protects the right to vote. Moreover, if only the legislature may act to promulgate election rules, then state legislators have essentially a free pass to do whatever they want. They already know that the Court won’t question them under the federal Constitution given the undue deference given to states on voting rights. State judges, invoking their state constitution, wouldn’t be able to stop them either.

The doctrine can’t be right as a matter of fundamental principles of constitutional law and judicial review. Courts exist in part to vindicate constitutional rights. It is absurd to suggest that state courts cannot protect the state constitutional right to vote because only the legislature can act in this area. A legislature exists pursuant to the authority given—and constraints imposed—by the state constitution. In fact, the current North Carolina Constitution is the product of the state legislature’s creation. It is nonsensical to say that state legislatures have free rein, devoid of any limits from the state constitution. If state courts have no power to stop the state legislature from violating the state constitution, then the world really has been turned upside down.

The doctrine is also wrong as a matter of history. A majority of the Supreme Court has rejected it already, as recently as 2015. Moreover, just three years ago, when rejecting a challenge to partisan gerrymandering under the U.S. Constitution, the Court stated, “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply”—meaning that state courts do have authority in this area. 

President Joe Biden, in his State of the Union address, declared that “the most fundamental right in America is the right to vote—and to have it counted. And it’s under assault.” It was already under assault in part from the Supreme Court’s restrictive rulings under the U.S. Constitution, which give too much power to state legislatures to craft election rules. Adopting the independent state legislature doctrine would cement that assault, as it would cut off the ability of state courts to protect voters under state constitutions. 

The North Carolina and Pennsylvania emergency appeals are about far more than gerrymandering. They are about whether state courts can oversee legislatures regarding the very rules that put those legislators in office. Of course, current politicians, who craft the rules of the game to help their side win in the future, are the last people who should receive deference for their election laws. If the Supreme Court agrees with these states and adopts the independent state legislature doctrine, then the foxes truly will be guarding the henhouses. 

Joshua Douglas

Follow Joshua on Twitter @JoshuaADouglas. is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com.