Former Justice Sandra Day O’Connor, 93, seemed to express sympathy in 2000 for elements of a controversial GOP-backed legal theory that would recognize state legislatures’ power to regulate federal elections without interference from state courts, according to the recently unveiled papers of the late Justice John Paul Stevens.
Then-President Gerald Ford appointed Stevens, a liberal jurist, to the Supreme Court in 1975. Stevens retired from the court in 2010 and died in 2019 at the age of 99. The Library of Congress has made a trove of documents from his time on the court available for public research.
O’Connor, who had previously been Republican majority leader in the Arizona Senate, became the first woman to serve on the Supreme Court when she was appointed by then-President Ronald Reagan in 1981. A moderate conservative who often served as the court’s swing vote, she retired from the court in 2006.
The theory is known as the “independent state legislature doctrine.” Republicans say the U.S. Constitution has always directly authorized state legislatures to make rules for the conduct of elections, including presidential elections, without interference by state judges. Democrats say this idea is a fringe conservative legal theory that could endanger voting rights and encourage gerrymandering.
The doctrine rests on clauses in the Constitution.
The elections clause in Article I states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The presidential electors clause in Article II gives each state the power to appoint presidential electors “in such Manner as the Legislature thereof may direct.”
O’Connor’s statements came in a newly uncovered Dec. 10, 2000, memo circulated among members of the court while it was considering Bush v. Gore, the decision issued two days later that ended the contested presidential election and locked in Republican George W. Bush’s razor-thin victory over Democrat Al Gore. The memo is included in Stevens’s papers.
At the time, the court ruled 7–2 that the ballot-counting methodology ordered by the Florida Supreme Court was unconstitutional because it treated voters in different parts of the state differently. The court also ruled 5–4 that the counting had to end because not enough time remained before the deadline the state legislature had established to appoint presidential electors, which meant that because Bush was ahead of Gore in the statewide popular vote at the time, the state’s electors were awarded to Bush, giving him a majority in the Electoral College.
O’Connor joined the court’s majority opinion on Dec. 12, 2000, which decided the case on equal protection grounds, sidestepping the independent state legislature doctrine.
But in her memo she reiterated major points made by current supporters of the doctrine.
She indicated that the Constitution requires federal courts to intervene in a case like Bush v. Gore to safeguard the authority of a state legislature to determine election rules.
“[I]t is not inconsistent with the idea of federalism to vindicate the constitutionally ordained authority of a state legislature against usurpation by another branch of state government not so empowered. Quite to the contrary, it is what the Constitution requires.”
The Florida Supreme Court violated the Constitution by not respecting the authority of that state’s legislature, she wrote.
“Since the November 7, 2000, presidential election, the Florida Supreme Court issued two rulings with respect [to] the appointment of Florida’s twenty-five presidential electors. An examination of these opinions reveals that the Florida Supreme Court has failed to give adequate consideration to the constitutional delegation of authority to the Florida legislature, and to the corresponding constraints our constitutional scheme places on its decision making power in this realm.”
Three members of the court—the late Chief Justice William Rehnquist and the late Justice Antonin Scalia, along with Justice Clarence Thomas—said in a concurring opinion that the doctrine applied.
The concurring opinion highlights the role the state legislature plays in selecting presidential electors under the Constitution.
The doctrine is now in the news because it is the subject of a current Supreme Court case known as Moore v. Harper, which is a challenge brought by North Carolina Republicans against a state electoral map favored by Democrats and that state’s supreme court. The case was argued before the U.S. Supreme Court on Dec. 7, 2022. After the oral argument, the formerly Democratic-dominated state supreme court was taken over by Republicans and on April 28 it reversed itself, finding that courts “are not intended to meddle in policy matters,” such as drawing electoral districts.
The briefs are due on May 11. The court could decide to dismiss Moore v. Harper as moot because the underlying controversy that gave rise to the appeal no longer exists. The court could also move forward with issuing a formal opinion in the case if the justices believe the issues at hand are too important to ignore.
