Bush v. Gore Introduced a Fringe Theory that Threatened Elections Decades Later

Chief Justice William Rehnquist’s concurring opinion in 2000’s Bush v. Gore introduced a half-baked legal theory that, after lying dormant for two decades, nearly upended the 2020 elections.

That faulty and now widely-discredited idea — known as the “independent state legislature theory” — goes like this: The Constitution’s Elections and Electors Clauses mandate that regulations for the times, places, and manner of federal elections be made in each state “by the Legislature thereof,” while also giving Congress simultaneous and superseding authority. The word legislature as used in those clauses was read by proponents of the theory to give state legislators near-exclusive authority over federal elections. They argued that the use of the word legislature prohibited checks and balances from state constitutions, state courts, or governors, and prohibited other entities (like a secretary of state or the people themselves) from exercising power over federal elections.

In search of some justification for this theory — which defied the constitutional text, history, practice, and precedent — its proponents turned to Rehnquist’s Bush v. Gore concurrence. 

In that case, Rehnquist posited that the U.S. Constitution’s assignment of elections authority to state legislatures diminished state judges’ power to alter “the general coherence of the legislative scheme” pertaining to elections. According to Rehnquist, a state court’s departure from a state statute’s meaning could infringe “upon the legislature’s authority” over federal elections under the U.S. Constitution. This interpretation did not win a majority on the Court in 2000 and garnered little scrutiny beyond academia at the time. Fittingly, it was relegated to the fringe of election law.

Enter the 2020 election and its aftermath, shaped by the pandemic and a new, virulent strain of election denialism. States met Covid-19’s novel and urgent challenges by adjusting election policies to ensure that voters could 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 easing voter participation, then-President Donald Trump and his allies brought legal challenges based on the independent state legislature theory. They argued that secretaries of state, election boards, governors, and state courts were not the “legislature,” and therefore had no power to make state policy for federal elections. Trump asked the Supreme Court to throw out ballots that voters cast in reliance on the policies adopted by entities other than state legislatures.

Ultimately, the Supreme Court declined to use the independent state legislature theory to overturn the election. But in responding to several emergency petitions, four justices indicated an openness to the theory, effectively inviting future litigants to press the question.

The theory’s proponents answered the call. In 2022, after the North Carolina Supreme Court struck down the state’s congressional map as an impermissible partisan gerrymander under the state constitution, the U.S. Supreme Court agreed to hear the appeal from North Carolina legislators. In that case, Moore v. Harper, state lawmakers argued that it violated the Elections Clause of the U.S. Constitution for the state court to strike down the map because the state court was not the “legislature.” When it came to federal elections, North Carolina legislators claimed they were independent of checks and balances, including the state’s constitution and the state’s highest court. Citations to Bush v. Gore featured heavily in briefs supporting the state lawmakers.

Moore v. Harper was the first time since Bush v. Gore that the Court considered, with the benefit of full merits briefing, the independent state legislature theory. In June 2023, the Court unequivocally rejected the radical contention that state legislatures enjoy “independence” from state checks and balances when making the rules for federal elections. Writing for the Court, Chief Justice John Roberts upheld, in the strongest possible terms, state judicial review. The Elections Clause, he explained, does not “carve[] out an exception to this basic principle” that state legislation must comply with the state’s constitution, as construed by state courts.

At the same time, the Supreme Court recognized that federal courts have a role to play in ensuring that state courts do not “exceed the bounds of ordinary judicial review” when adjudicating federal elections issues. This concept is not about the independence of state legislatures. It is also not novel. State courts have never had unfettered freedom to violate the federal Constitution. This principle has long been present in the Supreme Court’s jurisprudence, including decisions related to due process. For example, the Supreme Court has held that retroactive application of a state court’s construction of a criminal statute could violate the federal Due Process Clause if it so contradicts prior, clearly established state law as to be “unexpected and indefensible.” Moore made clear that federal courts should not review state court decisions on elections issues except in highly limited circumstances involving an extraordinary departure from normal judicial action.

After Moore, the Supreme Court has repeatedly declined to resuscitate the independent state legislature theory. And the Court has rebuffed requests to further specify what it means to “exceed the bounds of ordinary judicial review.” For example, the Court denied review of a Montana Supreme Court decision striking down certain state voting laws as violative of the state constitution. And after the Pennsylvania Supreme Court required mail ballots with certain technical defects to be counted, the U.S. Supreme Court rejected a cert petition seeking to overturn the state court’s decision. The U.S. Supreme Court has also rejected cert petitions emerging out of federal courts in which litigants challenged election policies that were adopted by executive officials or ballot initiative.

There is an alternative history where the dangerous ideas buried in Bush v. Gore wrecked recent elections. Thankfully, Moore and its aftermath have made clear that the independent state legislature theory can be put to rest.

Eliza Sweren-Becker is a deputy director of Voting Rights and Elections at the Brennan Center for Justice.

Suggested Citation: Eliza Sweren-Becker, Bush v. Gore Introduced a Fringe Theory that Threatened Elections Decades Later, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Dec. 9, 2025), https://statecourtreport.org/our-work/analysis-opinion/bush-v-gore-introduced-fringe-theory-threatened-elections-decades-later