U.S. Supreme Court takes on the independent state legislature theory The justices have agreed to hear a case next term about how much power state legislatures have over how congressional and presidential elections are run. It could upend election laws across the U.S.

How the Supreme Court could radically reshape elections for president and Congress

  • Download
  • <iframe src="https://www.npr.org/player/embed/1107648753/1109051883" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


And joining us now to explain how federal elections across the country could be affected by that Supreme Court case is NPR's Hansi Lo Wang. Hey, Hansi.


SUMMERS: So this case is about voting maps of congressional districts in North Carolina, but how could it have implications beyond that state?

WANG: Well, the Republican state lawmakers who brought this case - they're trying to restore a congressional map that state courts threw out after finding partisan gerrymandering that violates North Carolina's state constitution. And these Republican lawmakers are basing their appeal to the U.S. Supreme Court on this controversial fringe legal theory called the independent state legislature theory, which sounds wonky.

But it's worth paying attention to because it claims that the U.S. Constitution gives state legislatures the power to control how elections for Congress and for president are run without any checks and balances from state constitutions or state courts. And, again, this is a very controversial reading of the U.S. Constitution. But if it is endorsed by the Supreme Court, it could potentially be applied to federal elections not just in North Carolina but in every other state.

SUMMERS: So under this legal theory, are there any limits at all to what state legislatures can do about how federal elections are to be run? Or can they just do whatever they want?

WANG: Well, there are still federal laws passed by Congress and the U.S. Constitution. But the legal scholars I talked to warned that that would still leave a lot of room for state legislatures to ignore what their state constitutions or state courts say about how federal elections are supposed to be conducted. And they could potentially use this to subvert election results. They could, for example, make state lawmakers and not judges the ones who resolve disputes after an election. I talked to Carolyn Shapiro, a law professor at Chicago-Kent College of Law. And Shapiro told me if the Supreme Court ultimately endorses this theory, it could potentially lead to lots of lawsuits over existing election laws across the country. Let's listen.

CAROLYN SHAPIRO: It would allow the possibility that people who don't like state Supreme Court rulings that have been on the books potentially for years could step back in and say, well, actually, that ruling only applies to state elections.

SUMMERS: So, Hansi, how could that affect upcoming congressional and even presidential elections?

WANG: It could cause a lot of chaos, bring a lot of headaches to local election officials, who may have to struggle to keep up with different sets of ballots, voter registration systems and, in some cases, different voter ID laws, maybe - you know, one set for federal elections, another set for state and local elections. But the bottom line here is that many legal scholars are warning that allowing state legislatures this unchecked power over federal elections through this theory - that this poses a major threat to U.S. democracy.

You know, we've heard a version of this theory during the January 6 committee's hearings when they've talked about the fake elector scheme that former President Donald Trump's supporters were trying to carry out to change the outcome of the 2020 presidential election. And if the Supreme Court backs this theory, it could potentially provide the legal justification for another similar attempt for the 2024 election. I talked to Vikram Amar, dean of the University of Illinois College of Law. Let's listen.

VIKRAM AMAR: If the voters of a state through their constitution decide that they should be the ones to pick the electors to the Electoral College, then it's very dangerous for the elected state legislature to be able to disregard that and take whoever they want. That's not constitutional democracy as I understand it.

SUMMERS: Hansi, any indication of when the Supreme Court might rule in this case?

WANG: No, it's scheduled to be heard in their next term, which starts in October. But we may not get a ruling until a year from now.

SUMMERS: NPR's Hansi Lo Wang, thank you so much.

WANG: You're very welcome.

Copyright © 2022 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.