What is the independent state legislature theory and what does it mean for Ohio?
State officials, voting rights advocates and community organizations in North Carolina are set to face off in the U.S. Supreme Court later this year over a congressional redistricting dispute. Republican leaders are expected to make their case using the independent state legislature theory — a fringe legal concept that could have an impact on elections policy across the country and in Ohio.
Republicans in the North Carolina state legislature drafted a congressional district map that went up for review by the North Carolina superior court. The state court struck down that map as unconstitutional and implemented its own map, which was drafted by a group of outside redistricting experts.
The North Carolina Republican legislative leaders are challenging the state court’s authority to implement its own maps by invoking what's called the independent state legislature theory. This theory says the U.S. Constitution’s elections clause gives state legislatures the sole authority to make decisions related to federal elections, bypassing the power of state courts and state constitutions.
Voting rights advocates and good government groups believe the result of this case can effect many states, including Ohio, since the state still doesn't have a congressional map that's been ruled constitutional.
While the North Carolina battle was playing out, leaders in Ohio were also squaring off over redistricting. The Ohio Redistricting Commission and the Ohio Supreme Court have gone one round after another over new state legislative district maps. Republicans on the redistricting commission adopted a set of maps five times, and all five times the supreme court rejected those maps for unconstitutionally favoring the GOP.
Suzanne Almeida, redistricting counsel for the government watchdog group Common Cause, said the result of the U.S. Supreme Court case could play a role in states where the tension between the state court and the state legislature is high.
“Ohio is one of those states. North Carolina is one of those states. Pennsylvania is one of those states. But it's coming up in places where the courts and the legislature are not on the same page, particularly as it comes to voting rights or redistricting,” Almeida said.
Almeida said there is a strong argument against the independent state legislature theory. She noted that there is a long history of state constitutions taking on the role of expanding rights beyond the U.S. Constitution.
“Depending on the United States Supreme Court's decision in this case, it could restrict a lot of that ability to uphold the will of the voters,” said Almeida.
In 2015 and 2018, Ohio voters approved changes to the state constitution that created a new redistricting process to prevent gerrymandering — when leaders draft maps to favor one party over another — which led to the current scrap between Ohio’s supreme court and the redistricting commission, which was created by the 2015 amendment.
Donald Brey is a Columbus attorney who specializes in elections law in Ohio. While he said the U.S. Supreme Court case will be interesting to monitor, Brey does not believe it will make much of a difference in Ohio.
Brey noted that the North Carolina dispute is centered around the state court implementing its own map, but he said the Ohio Constitution already prohibits the Ohio Supreme Court from drawing district lines.
“Courts in Ohio are not going to draft legislative districts. If the U.S. Supreme Court says courts in any state can't draft legislative districts, it’s not going to affect us,” said Brey, who won a court case this year to have state legislative maps — previously ruled unconstitutional by the Ohio Supreme Court — implemented by a federal court.
But Brey added that the impact of the U.S. Supreme Court’s decision, if it ruled in favor of the North Carolina Republican leaders, would depend on the scope.
“Is there an outside possibility that this case would have an impact on Ohio? Anything is possible, I don't think there's a reasonable likelihood of it though,” said Brey.
The Ohio Supreme Court rejected the first congressional district map adopted by Republicans in the state legislature in 2021. Then, the Ohio Redistricting Commission drafted a congressional district map which is currently being used for this year's congressional races. However, there is a challenge against that map pending in the Ohio Supreme Court which could get a hearing after this year’s November general election.