Justice Brett M. Kavanaugh agreed that the question was important. “The issue is almost certain to keep arising until the court definitively resolves it,” he wrote.
Those statements echoed similar ones in opinions issued in October 2020.
“The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election,” Justice Alito, joined by Justices Gorsuch and Thomas, wrote in a statement when the court refused to fast-track review of whether the Pennsylvania Supreme Court could alter deadlines for mail ballots set by the Legislature.
Along the same lines, Justice Gorsuch, joined by Justice Kavanaugh, wrote in a concurring opinion that “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
The Supreme Court agreed in June to hear the North Carolina case on the merits.
Some of the court’s precedents tend to undermine the independent state legislature theory.
When the court closed the doors of federal courts to claims of partisan gerrymandering in Rucho v. Common Cause in 2019, Chief Justice John G. Roberts Jr., writing for the five most conservative members of the court, said state courts could continue to hear such cases — including in the context of congressional redistricting.
“Our conclusion does not condone excessive partisan gerrymandering,” he wrote. “Nor does our conclusion condemn complaints about districting to echo into a void. The states, for example, are actively addressing the issue on a number of fronts.”
Seeming to anticipate and reject the independent state legislature theory, he wrote that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”