The Supreme Court is so conservative, and at times so untethered from legal principles, that even a pro-democracy ruling such as the one the court issued Tuesday is tinged with danger. Chief Justice John Roberts, joined by five of his colleagues, handed down a ruling that will avert disaster for elections in this country. But the chief justice also laid landmines for future elections by recalling the court’s infamous ruling in Bush v. Gore.
The case before the court dealt with a challenge to congressional district lines drawn by the GOP-dominated North Carolina Legislature. The state’s supreme court, at the time controlled by Democrats, concluded in February 2022 that the district lines amounted to partisan gerrymandering in favor of Republicans, and thus violated the state’s constitution. Republicans who challenged the ruling claimed that the state supreme court had no power to decide the case. Under the U.S. Constitution, they argued, only state lawmakers can make decisions about federal elections, like the drawing of district lines.
This is a bit like celebrating the Court asking an arsonist to leave the house after inviting him in.
The independent state legislature theory relies on the Elections Clause of the Constitution, which provides that state legislatures determine the “Times, Places and Manner” of federal elections. Under this theory, only state lawmakers — not state courts, state election administration officials, nor governors — can make decisions about federal elections. If, for instance, the state legislature wanted to close down half of the state’s polling places, it would be able to do so free of state judicial review as to whether such a move violated state laws.
In a final twist, while the case was up on appeal to the U.S. Supreme Court, the balance of power in the North Carolina Supreme Court flipped, and the Republican majority overruled the previous decision. Given this reversal, there was some question as to whether the U.S. Supreme Court would still find that there was a live controversy to decide. This week they answered that question in the affirmative.
The inclination to celebrate the Supreme Court’s decision as a victory for democracy makes sense. But this is a bit like celebrating the court asking an arsonist to leave the house after inviting him in. The Supreme Court chose to hear a case with a fringe theory about the power of state lawmakers. There was no reason that they had to do so. The fact that, after oral arguments, they realized they maybe shouldn’t show the arsonist where the matches are kept is hardly an act of legal heroism.
Worse, more fires may still lie ahead. Yes, the court largely rejected the independent state legislature doctrine. But Roberts’ ruling allows the court to play a decisive rule in future election disputes. Joined by a majority of the court, Roberts wrote that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” If you don’t know when this “ordinary bounds” standard applies, or even what it means, you’re not alone. The standard is so broad, vague and amorphous that it means both nothing and everything all at once. While Roberts’ standard is vague, the outcome could be concrete. Roberts has asserted that federal judges have a role to play when state courts are reviewing state laws, at least with respect to federal election disputes. It doesn’t take much to imagine that another presidential election could come down to the outcome in one state. We can envision, for example, that the 2024 presidential election hinges on the winner of Georgia. There would, no doubt, be lawsuits regarding its election laws that would be appealed up to the Georgia Supreme Court. The side that loses would argue that the state supreme court “transgress[ed] the ordinary bounds of judicial review” and appeal its case up to the U.S. Supreme Court. This week’s decision gives the Supreme Court the power to hear that appeal, and second-guess the state supreme court’s decision about its own election laws. Roberts gained the imprimatur of even the court’s three most liberal justices. If that 2024 hypothetical sounds familiar, it is because it is close to what happened during the 2000 election, when the U.S. Supreme Court decided to review a decision by the Florida Supreme Court. In Bush v. Gore, only three justices — Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas — espoused the theory that a majority of the court appeared to adhere to this week. Today, thanks to the court’s decision, that once fringe theory may now be our guiding principle. And while Thomas dissented this week, Roberts gained the imprimatur of even the court’s three most liberal justices. In 2000, Bush v. Gore undermined the legitimacy of the Supreme Court as an independent judicial body. Now, in 2023, the court has drawn the blueprints to allow itself to again intervene in close federal elections — further eroding its legitimacy and our elections.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
