Radical theory has roots in Bush v. Gore ruling — and support from four conservative justices

The groundwork for a potentially earth-shaking election law case was laid in the monumental Supreme Court decision that decided the 2000 election in favor of George W. Bush.

The court ruled 5-4 to end recounts ordered by the Florida Supreme Court, giving Bush a narrow electoral victory over Al Gore, and the late chief justice William Rehnquist's concurring opinion in Bush v. Gore offered an early version of the independent state legislature theory that's being tested in a dispute over North Carolina's congressional districting, reported CNN.

“But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government, Rehnquist wrote in a concurring opinion joined by the late Antonin Scalia and current justice Clarence Thomas. "This is one of them."

Rehnquist argued that the Constitution gave state legislatures unchallenged authority over state courts to make election law, which could prevent judges from rejecting unfair redistricting maps or invalidating measures aimed at restricting voter access, and could even give legislators to appoint presidential electors over the will of the popular vote.

“In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law," Rehnquist wrote. "That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns."

But elections are different, he wrote, and argued that the Electors Clause of the Constitution’s Article II gave state legislatures the authority to "direct" the appointment of presidential electors, and Rehnquist insisted that gave them exclusive power to determine how the electors were chosen.

“This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures,” he wrote.

Rehnquist's theory faded away until Donald Trump's allies revived it in their challenges to his 2020 election loss, and justice Brett Kavanaugh -- who had been on Bush's legal team in 2000 -- invoked it in a challenge to Wisconsin election rules.

“Under the U.S. Constitution, the state courts do not have a blank check to rewrite state election laws for federal elections,” Kavanaugh wrote in October 2020. “As Chief Justice Rehnquist persuasively explained in Bush v. Gore … the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”

Kavanaugh joined a separate opinion in that case by justice Neil Gorsuch, who echoed Rehnquist's arguments without directly citing them.

“The Constitution provides that the state legislatures – not federal judges, not state judges, not state governors, not other state officials – bear primary responsibility for setting election rules," Gorsuch wrote.

Gorsuch, Kavanaugh and Thomas have all made clear they're open to the independent legislature theory, and justice Samuel Alito encouraged them to take up the North Carolina case.

“There is no doubt that this question is of great national importance,” Alito wrote earlier this year.