Chief Justice William Rehnquist’s concurring opinion in the 2000s Bush vs. Gore introduced a half-baked legal theory that nearly upended the 2020 election after lying dormant for two decades.
The now widely discredited fallacy, known as the “independent state legislature theory,” is as follows: The Constitution’s Elections and Electors Clause requires that regulations regarding the time, place, and manner of federal elections be made in each state “by the Legislature,” while also giving Congress overriding authority. The word Congress, as used in these provisions, was interpreted by proponents of this theory to give state legislatures near-exclusive authority over federal elections. They argued that the use of the word Congress prohibits checks and balances by state constitutions, state courts, and governors, and prohibits other actors (such as the Secretary of State or the people themselves) from exercising power over federal elections.
Seeking justification for the theory against the text of the Constitution, history, practice, and precedent, its proponents turned to Rehnquist’s theory. Bush vs. Gore Agree.
In that case, Rehnquist argued that the U.S. Constitution’s assignment of election power to state legislatures diminished the power of state judges to change the “overall consistency of the legislative system” regarding elections. Rehnquist said state courts’ departure from the meaning of state law could infringe on “Congress’ authority” to govern federal elections under the U.S. Constitution. This interpretation failed to win a majority in the court in 2000 and drew little scrutiny beyond academia at the time. Fittingly, it has been relegated to the margins of election law.
Let’s take a look at the 2020 election and its aftermath, shaped by a pandemic and a new virulent form of election denialism. States responded to the new challenges of COVID-19 by adjusting election policies to help voters cast their ballots safely. With little time for legislative action, many governors and election officials adopted these policies by executive order, regulatory action, or as a result of litigation. Concerned about the partisan implications of relaxing voter participation, then-President Donald Trump and his allies filed a legal challenge based on the doctrine of state legislature independence. They argued that the Secretary of State, the Board of Elections, the Governor, and the state courts are not “Congress” and therefore have no authority to set state policy for federal elections. President Trump asked the Supreme Court to throw out votes cast by voters relying on policies adopted by entities other than state legislatures.
In the end, the Supreme Court refused to use the doctrine of independent state legislatures to overturn the election. But in responding to several emergency petitions, four justices showed openness to the theory, effectively encouraging future litigants to pursue the issue.
Proponents of this theory answered the call. In 2022, the U.S. Supreme Court agreed to hear a North Carolina lawmaker’s appeal after the state Supreme Court struck down the state’s legislative map as a partisan gerrymander that is not allowed under the state constitution. In that case, Moore vs. Harperthe state legislature argued that because state courts are not “Congress,” it would be a violation of the Elections Clause of the U.S. Constitution for state courts to destroy the maps. When it comes to federal elections, North Carolina lawmakers claimed to be independent of the state constitution and checks and balances, including the state Supreme Court. Quote to Bush vs. Gore It was featured prominently in a brief supporting state lawmakers.
Moore vs. Harper It was the first time since Bush vs. Gore The court said it considered the theory of state legislature independence with the help of a full merits briefing. In June 2023, the court specifically rejected the radical claim that state legislatures are “independent” from state checks and balances when establishing federal election rules. Chief Justice John Roberts, writing for the court, upheld the state’s judicial review in the strongest possible terms. He explained that the Election Clause “does not create an exception to this fundamental principle” that state law must follow the state constitution as interpreted by state courts.
At the same time, the Supreme Court acknowledged that federal courts have a role in ensuring that state courts “do not exceed the scope of ordinary judicial review” when deciding federal election issues. This concept is not about the independence of state legislatures. That’s not new either. State courts have never been given the freedom to violate the federal constitution. This principle has long existed in the Supreme Court’s jurisprudence, including decisions related to due process. For example, the Supreme Court held that a state court’s retroactive application of an interpretation of a criminal law may violate the federal Due Process Clause if it is materially inconsistent with previously clearly established state law and is “unforeseen and indefensible.” moore It made clear that federal courts should not review state court decisions on election issues except in very limited circumstances that involve an exceptional departure from normal judicial conduct.
rear moorethe Supreme Court has repeatedly refused to reinstate the doctrine of independence of state legislatures. And the court rejected a request to further specify what it means to be “beyond the scope of ordinary judicial review.” For example, the court declined to consider a Montana Supreme Court decision that struck down certain state voting laws as violating the state constitution. And after the Pennsylvania Supreme Court required mail-in ballots with certain technical flaws to be counted, the U.S. Supreme Court denied a cert petition seeking to overturn the state court’s decision. The U.S. Supreme Court also rejected cert petitions filed in federal courts in which litigants challenged election policies adopted by executive officials or ballot initiatives.
There is another history where dangerous ideas are buried. Bush vs. Gore It ruined the recent election. Thankfully, moore And in its aftermath, it became clear that the theory of independent state legislatures could be brought to an end.
Eliza Sweren-Becker is deputy director of Voting Rights and Elections at the Brennan Center for Justice.
Recommended Citation: Eliza Swearen Becker, Bush v. Gore Introducing fringe theories that threaten elections decades in the futureSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (December 9, 2025), https://statecourtreport.org/our-work/analysis-opinion/bush-v-gore-introduced-fringe- Theory-thretened-elections-decades-later
