Can the Supreme Court Define a State’s ‘Legislature’?

The Supreme Court hears the most consequential case of the 2022-23 term Wednesday. Moore v. Harper is generally framed as a case about election law, but it’s more properly understood as being about states’ rights. The question is whether federal courts can dictate to the states how their legislatures are composed.

The case emerges from North Carolina, where in 2021 state lawmakers enacted new congressional maps. When state courts ruled that the maps ran afoul of the state constitution, lawmakers petitioned the Supreme Court for relief, claiming that the state courts had violated the U.S. Constitution by reviewing the maps. They argue that because the Constitution empowers state legislatures to draw congressional maps and appoint presidential electors, state courts can’t deem lawmakers’ actions unconstitutional under state constitutions.

Under the lawmakers’ “independent state legislature” theory, which three justices floated in Bush v. Gore (2000), an unchecked state legislature could give the state’s electoral votes to the loser of the popular vote—even if the state constitution orders that the people decide. That’s the theory by which in 2020 Donald Trump hoped GOP legislators in Arizona, Georgia, Pennsylvania and Wisconsin would hand him their states’ electoral votes—even though he had lost at the polls.

An affirmation of the theory would be a constitutional travesty. It’s true that the U.S. Constitution empowers state legislatures to draw congressional districts and determine how presidential electors are chosen. But it doesn’t authorize the Supreme Court to decide what a state legislature is or isn’t. State constitutions define the state legislature, subject only to the U.S. Constitution’s requirement that “the United States shall guarantee to every state in this union a republican form of government.”