In litigation concerning the 2020 presidential election, the U.S. Supreme Court issued four memoranda in response to three petitions raising the independent state legislature (“ISL”) theory.

Wisconsin

First, in Democratic National Committee v. Wisconsin State Legislature, the Court denied an application to vacate the Seventh Circuit’s stay of an injunction against Wisconsin’s enforcement of its Election Day deadline for receiving absentee ballots.¹141 S. Ct. 28 (2020) (Mem.). Chief Justice Roberts concurred that the federal district court should not have negated the legislature’s deadline, but distinguished federal limitations from “the authority of state courts to apply their own constitutions to election regulations.”²Id. (Roberts, C.J., concurring in denial of application to vacate stay). Justice Gorsuch and Kavanaugh drew no such distinctions, writing “[t]he 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.”³Id. (Gorsuch, J., joined by Kavanaugh, J., concurring in denial of application to vacate stay). In articulating a political accountability justification⁴See id. (“Legislators can be held accountable by the people for the rules they write or fail to write; typically, judges cannot. Legislatures make policy and bring to bear the collective wisdom of the whole people when they do, while courts dispense the judgment of only a single person or a handful.”). for distinguishing between the courts and state legislatures, Justice Gorsuch hinted at the possibility that some delegations of election administration may be unconstitutional.

While Justice Kavanaugh joined Justice Gorsuch’s concurrence, he also wrote a separate opinion, similarly outlining his views on the meaning of the Electors Clause and focusing on the relationship between state legislatures and the federal judiciary.⁵Id. (Kavanaugh, J., concurring in denial of application to vacate stay). Notably, in arguing that the district court’s injunction was unwarranted, Justice Kavanaugh included a footnote citing Chief Justice Rehnquist’s concurrence in Bush v. Gore, warning that “the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.⁶Id. at n.1. Quoting Chief Justice Rehnquist’s concurrence, Justice Kavanaugh’s footnote stated that “Article II means that ‘the clearly expressed intent of the legislature must prevail’ and that a state court may not depart from the state election code enacted by the legislature.”⁷Id.

Pennsylvania

In mid-October 2020 (one week before Justice Amy Coney Barrett’s confirmation), in Republican Party of Pennsylvania v. Boockvar (Boockvar II), the Court in a 4-to-4 vote denied a request to expedite consideration of a petition for certiorari to stay the Pennsylvania Supreme Court’s ruling that mail-in ballots would be treated as timely if they were postmarked on (or before) Election Day and received within three days thereafter.⁸141 S. Ct. 1 (Mem.) (2020) (Alito, J., joined by Thomas & Gorsuch, JJ., concurring in denial of motion to expedite consideration of petition for certiorari). Joined by Justices Thomas and Gorsuch, Justice Alito wrote a concurring opinion–agreeing that there was “not enough time at this late date to decide the question before the election.”⁹ Id. at 2. Justice Alito’s opinion, however, accused the state court of overreach: “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.”¹⁰Id. (citing U.S. CONST. art. I, § 4, cl. 1; Id. art. II, § 1, cl. 2.).

After the election, in February 2021, the Court ultimately denied certiorari.¹¹See Republican Party of Pennsylvania v. Degraffenreid, 141 S. Ct. 732 (2021). Notably, the same three Justices dissented from the decision. Justice Thomas posited that “[b]ecause the Federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections, petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution . . . .” ¹²Id. (Thomas, J., dissenting from the denial of certiorari). Furthermore, Justice Thomas also contended that “both before and after the 2020 election, nonlegislative officials in various [s]tates took it upon themselves to set the rules.”¹³Id.

In Justice Alito’s dissent, joined by Justice Gorsuch, he claimed that the Electors and Elections Clauses provide “state legislatures, not state courts, the authority to make rules governing federal elections.¹⁴Id. (Alito, J., joined by Gorsuch, J., dissenting from the denial of certiorari). Furthermore, Justice Alito, who went on to restate much of his concurrence in Boockvar II, additinally stated that it “would be meaningless if a state court could override the rules adopted by the legislatures simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate” in elections. In reiterating his complaint about “breadth” of the the state supreme court’s decision in usurping the role of the legislature, Justice Alito stated that this would open the door for “parties who are unhappy with the legislature’s rules” to “invoke this decision and ask the state courts to substitute rules that they find more advantages.”¹⁵Id.

North Carolina

Like Wisconsin, the North Carolina litigation involved statutes that applied to both federal and state elections. And in contrast to Wisconsin, the North Carolina litigation initially presented only state constitutional claims brought in state court. The initial suit began in state court against the state’s election board, and culminated in a settlement to extend the deadline for absentee ballots (due to the COVID-19 pandemic) that was approved by a state trial court.¹⁶For a summary of the suits in North Carolina, see Moore v. Circosta, SCOTUSblog, https://www.scotusblog.com/election-litigation/moore-v-circosta (last visited Nov. 30, 2022). But the Republican Speaker of the state’s House of Representatives and the Republican state Senate Majority Leader, who had entered the case as defendants, went to federal court and argued that the settlement was unconstitutional.¹⁷Id. After making its way¹⁸Moore v. Circosta, 494 F.Supp.3d 289 (M.D.N.C. 2020) (Moore I); Wise v. Circosta, 978 F.3d 93 (4th Cir. 2020); Moore v. Circosta, 141 S. Ct. 46 (2020) (Moore II). to the U.S. Supreme Court, in a 5-to-3 vote, the Court declined to enjoin the settlement.¹⁹Moore v. Circosta, 141 S. Ct. 46 (2020) (mem.) (declining to grant injunction pending appeal).

Justice Gorsuch, joined by Justice Alito, dissented, suggesting that it was “egregious” for state courts and the state board of election to work together to “override a carefully tailored legislative response to COVID.”²⁰Id. at 47 (Gorsuch, J.,dissenting from denial of injunctive relief pending appeal). Additionally, Justice Gorsuch added taht “efforts like these . . . offend the Elections Clause’s textual commitment of responsibility for election lawmaking to state and federal legislators . . . .”²¹Id. at 48.