Moore v. Harper killed the Independent State Legislature Theory. Did it swing too far the other way?

As partisan gerrymandering takes a larger role in conversations about elections and election policy, the role and authority of state courts has become increasingly important. Partisan gerrymandering, the process in which state legislatures draw Congressional maps to skew the results towards their side by taking advantage of the first-past-the-post system, is an incredibly powerful tool to skew House races. The power is typically vested in state legislatures as per the Elections Clause of the Constitution, which states that the “...manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof” [1]. From the Elections Clause, conservative strategists have developed the Independent State Legislature Theory (ISLT), a legal philosophy that interprets the Elections Clause to grant state legislatures unregulated control of the redistricting process [2]. This interpretation is particularly helpful for Republicans, granting their 23 state legislature trifectas unregulated control while Democrats fall behind due to their mere 15 trifectas [3].

The ISLT poses a direct threat to the foundations of the judicial branch of the US government, based upon the concept of judicial review of state law clearly outlined in Marbury v. Madison, (“Marbury”) (1803). In the 2023 Supreme Court case Moore v. Harper (“Moore”) (2023), a bipartisan 6-3 majority rejected the ISLT, ruling that the North Carolina Supreme Court had a right to play a role in the redistricting process and weakening the influence of ISLT. The arguments presented by Justice Roberts rely on 4 key arguments, the first of which describes the legal principle of judicial review that allows the courts to strike down unconstitutional laws and decisions, as per Marbury. In the second argument, Roberts employs stare decisis, or yielding to precedent, to argue the courts should not consider legislature power on elections as entirely void of outside opinion. He defers to decisions like Smiley v. Holm, (“Smiley”) (1932), which supported the right of a governor to veto state election policy, Arizona State Legislature v. Arizona. Independent Redistricting Commission, (“Arizona”) (2015), which permitted independent redistricting commissions, and Ohio ex rel. Davis v. Hildebrant (“Ohio”) (1916) [4], allowing voter referendums on redistricting law [5]. He further strikes down arguments that state courts can only oversee legislative procedure on elections, not legislative policy, to reference historical precedent and affirm that legislatures do not have unlimited power.

While this part of Roberts’ decision is not uniquely controversial amongst most legal scholars, Roberts explicitly refuses to establish a standard for the extent to which federal courts can oversee state court decisions on election policy, articulating:

We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific. We hold only 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 [5].

In his concurrence, Justice Kavanaugh backs Roberts’ rejection of ISLT but argues that the Supreme Court must establish a test or line in which federal courts can intervene to protect state legislature authority. This article will generally agree with Kavanaugh’s logic challenging Roberts’ refusal to commit to a test for Moore. In the concurrence, Kavanaugh relies on Justice Rehnquist’s “impermissible distortion” test, established in Bush v. Gore (“Bush”) (2000) [6]. However, both Kavanaugh’s test and Roberts’ “ordinary bounds” guidelines likely do not amount to a strict test in practice, appearing more as a ‘we’ll know it when we see it’ principle as compared to a legitimate test. The vagueness of Kavanaugh’s “impermissible distortion” test, along with Roberts’ lack of test that Justice Kavanaugh effectively refutes, is a threat to the separation between Federal and State judicial authority; as such, this article concludes that the Moore decision should have established a more clear and interpretable test for lower federal courts to follow as a way to check federal judicial overreach.

First, consider the key flaws in this “impermissible distortion” test, despite its past establishment by the Rehnquist court. To assess the merit of this test, this article will employ three common standards: clarity, legitimacy, and administrability [7].

Beginning with clarity, it is difficult to find clearly established definitions or standards of how this “distortion” could occur. Neither Kavanaugh or Rehnquist make it clear what they consider “impermissible,” and while this may be interpreted as deviations from the plain text of the constitution or clear precedent, we are left with a significant gray area in which interpretations of the law that do not come from plain text or clear precedent are left undetermined [8]. In the case where a state law or constitution does not define how a legislature may dictate election policy, federal courts’ role overseeing state courts is uneasy. This leaves federal courts unable to make a clear determination if the aforementioned decision is “impermissible.” Unless all courts keep Justice Kavanaugh readily available as a reference for this case-by-case standard, federal courts run the risk of either overly curtailing or under-regulating state judicial authority.

While Rehnquist’s test kept legitimacy and public approval in mind, the possibility of federal courts aggressively encroaching on the authority of state courts, as either an assistance to unruly legislatures or a centralization of federal power, is unlikely to sit with either liberals or conservatives. While perhaps not as crucial a metric to evaluate the test as the aforementioned clarity, understanding legitimacy helps one understand the way this “impermissible distortion” may operate in practice. The perception of federal courts ‘treading’ on state independence is unlikely to sit well amongst voters.

The vagueness of Kavanaugh’s test may require federal courts to get involved in state constitutional law without bringing in the US Constitution. State courts that make a determination on their constitution and legislature’s compliance are now subject to review from a federal court whose expertise lies in the US Constitution, not each states’. One may imagine a scenario in which interpretations of the Texas Constitution falls into the hands of an already busy Supreme Court, extending the authority of the highest Court into state constitutional interpretation, beyond their typical practice, in a way that is certain to frustrate states’ rights advocates and constitutional scholars alike. The “impermissible distortion” test risks a significant and unconstitutional expansion of the Supreme Court into interpretations of the legality of state law according to state constitutions, not the Federal Constitution as is typically their jurisdiction [9].

The next crucial step is evaluating the reasonability of establishing a clear test here, considering precedent. We look first to tests established in cases like Reynolds v. Sims, (“Reynolds”) (1964), in which the Court enshrines the concept of “one person one vote” in their test of how state legislatures draw maps and requires state legislatures to follow an “honest and good faith” effort to construct districts of nearly equal population [10]. In Lemon v. Kurtzman, (“Lemon”) (1971), the Court is even clearer in evaluating the Establishment Clause of the 1st Amendment, creating a 3-part test to determine exactly when and where religion and secularism play into state law [11]. In Pike v. Bruce Church (“Pike”) (1970), the Court developed a balancing test to consider interstate commerce [12]. All three of these cases provide a guide for a better standard Moore could have established. Reynold highlighted the path from vagueness to a specific doctrine and practice that the courts can frequently employ during evaluations, while both Lemon and Pike give lower federal courts actionable guidelines on their determinations, instead of constantly deferring back to the Supreme Court.

One may also look to the decisions of Washington v. Glucksberg (“Glucksberg”) (1997) [13] and Craig v. Boren (“Boren”) (1976) [14] to see the intermediate scrutiny test as an example of precedent wherein the Court took a vague and frequently debated interpretation and established a clear test for later interpretations [15]. Applying this metric to the Elections Clause, the Court does not need to come up with an all-encompassing test that deals with every situation, but can and should create a test in which state courts are effectively equipped to handle these “complex” decisions effectively without needing to reference federal courts in each instance. In the context of the ISLT, where the current “impermissible distortion” test not only does not satisfy the criteria of an effective legal test but also leaves space for clearer interpretation. Justice Roberts is correct when he reasons that these interpretations are “complex and content specific,” but it is rarely the tradition of the Court to not engage with these situations at all [16].

The third consideration must be the implications of establishing this test and the risk that Moore not establishing a test presents. As is aforementioned, Moore’s failure to establish a more specific test creates two key risks: first, that the federal government is forced to get involved in state constitution cases where they do not possess the ultimate legal expertise and knowledge; and second, where the federal government starts encroaching on state independence by exercising judicial overreach into every single decision a state court makes on their own states’ election policies. Establishing a more clear test risks overextending — a test that seeks to be too clear, too legitimate, and too compliant with administrative difficulties is certain to not be universalized across all possible situations. Thus, a test which still allows for interpretation, perhaps in line with the intermediate scrutiny test of Boren, may be the most fitting for Moore to establish. This intermediate test would enable circuit courts to effectively interpret the balancing act that is state judicial overreach over election policy. Here, we may see an ideal distribution of powers occur: the legislature maintains its authority, protected by federal courts, while state courts retain their ability to oversee the legislature and are barred from running rogue by federal courts that have more clearly defined guidelines on this regulation.

The Independent State Legislature Theory is a legal principle that presents extreme risk to the foundations of our judicial system as the Constitution establishes, and the Court’s decision in Moore to reject the ISLT will help preserve the structure and basis of our judicial system and the entire concept of judicial review. However, the lack of legal test and guidelines established by Justice Roberts’ majority and vagueness of Kavanaugh’s concurrence leaves a gray area in which federal courts can wield their power in unconstitutionally strong ways. As the conservative-dominated Supreme Court increasingly concentrates power, leaving lower and state courts decisions ignored or skirted, the Judicial branch as a whole plays an increasingly important role in checking presidential authority. To conclude, Moore must be revised to effectively delineate judicial power distribution between federal and state courts.

Works Cited

[1] The US. Constitution, art I, sec. 4, cl. 1.2.

[2] The ISLT, in essence, utilizes a textual reading of the Constitution to determine that, instead of the judicial review we traditionally expect from the courts upon Congressional power, the Elections Clause grants direct and unfiltered power to a state legislature to determine the “manner” in which elections take place, involving the process of redistricting. The ISLT unsuccessfully attempts to utilize the Federalist Papers no. 78 to articulate the responsibility a legislature has only to its own states’ constitution, not traditional legal practices followed by Congress in regards to the Supreme Court. In the context of Moore, petitioners (the side arguing in favor of ISLT) attempt to argue a difference between the constraints on election procedure, not substance — i.e. that courts can regulate how election law and legislative procedure are passed but not substantive choices about redistricting and election rules.

[3] Multistate. “2025 State Government Trifectas.” Last modified 2025. Accessed October 26, 2025. https://www.multistate.us/resources/2025-state-government-trifectas.

[4] Moore v. Harper, 600 U.S. 1, 3-4 (2023).

[5] In Smiley, the Supreme Court evaluated a challenge to the governor of Minnesota vetoing the Congressional map proposed by the state legislature. Under Chief Justice Hughes, the Court unanimously ruled that The U.S. Constitution, specifically the Elections Clause, did not restrict the ability of a Governor to veto the legislature’s Congressional map. In Arizona, the court considered the constitutionality of Arizona’s Independent Redistricting Commission, ruling that it did not violate the Elections Clause and striking down the state legislature’s claim on the basis of the referendum passed by the people of Arizona. Justice Ginsburg ruled that, although not common practice during the writing of The Constitution, the people have historically had a more direct say in election policy that has not been restricted by the Elections Clause. Finally, in Ohio, the Supreme Court affirmed the ability of referendums to influence Congressional maps, citing the common practice within Congress to support referendums and the ability of states to decide election policy beyond simply the legislature’s drawn maps. All three of these key cases make the basis for Justice Roberts’ majority opinion that employ stare decisis and support the idea that the Elections Clause of the Constitution is not absolute.

[6] Moore v. Harper (2023), 29.

[7] Bush v. Gore, 531 U.S. 98, 115 (2000).

[8] The use of these three tests is derived from a compilation of work by legal scholars, including: the University of Chicago Law Review, which evaluates the clarity of legal principles; the International Journal on Constitutional Law, which considers the issue of legitimacy within judicial doctrines; and the University of Minnesota Law School, which assesses the need and importance of administrability within these doctrines.

[9] Bush v. Gore (2000), 149.

[10] As is clearly established in the US Constitution, we understand the power of the Federal Judiciary to be one that oversees the authority of the US Congress, not of state legislative bodies. Article 3 Section 2 of the Constitution states that: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” We note that the judiciary is granted authority under the US Constitution and for laws of the United States, not specific states and their individual laws.

[11] “Reynolds v. Sims.” Oyez. Accessed October 24, 2025. https://www.oyez.org/cases/1963/23.

[12] “Lemon v. Kurtzman.” Oyez. Accessed October 24, 2025. https://www.oyez.org/cases/1970/89.

[13] The test established in Pike is written as: “where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

[14] “Washington v. Glucksberg.” Oyez. Accessed October 24, 2025. https://www.oyez.org/cases/1996/96-110.

[15] “Craig v. Boren.” Oyez. Accessed October 24, 2025. https://www.oyez.org/cases/1976/75-628.

[16] In Glucksberg, Dr. Harold Glucksberg challenged Washington state’s ban on physician-induced suicide as unconstitutional, arguing it violated the 14th amendment. The Supreme Court rejected Glucksberg’s claim, relying on the practice of historically rooted rights and liberties to suggest that physician-induced suicide is not a key part of the Due Process Clause and the rights it grants us. The key part of this case that is relevant to this analysis of Moore is the rationality test the case employs, suggesting that the ban was rationally related to the state of Washington’s interest in protecting their citizens and medical ethics. A test that adopts a more concrete metric like the rationality test could be applicable here. In Boren, Curtis Craig challenged an Oklahoma law on alcohol consumption that differed between men and women on the 14th amendment’s Equal Protection Clause. The Court ruled that the law did indeed violate the 14th amendment and crucially established an intermediate scrutiny test for gender discrimination tests, one that was less rigorous than strict scrutiny tests but more concrete than rational basis, the lowest standard for a test.