Conservative lawyers hope to present a legal proposal to the Supreme Court on Wednesday. This would allow state legislatures to have more control over elections. This could have a significant impact on everything, from who is elected to Congress to which rules voters must follow in order to vote in 2024.

It is not clear if the court will accept the “independent legislature” theory that underpins the case. This will likely come down the divisions in the court’s conservative major when they hear arguments on Moore v. Harper.

The majority of the justices have already indicated where they will fall on the theory. This leaves three conservative judges as potential majority makers.

Rick Hasen, a well-known UCLA election law professor, said that the three liberal justices would not be buying into the theory based on their overall ideologies. He also wrote an amicus brief asking the court to reject the theory. Based on previous writings, he said that the conservative Justices Clarence Thomas and Neil Gorsuch were “sympathetic to this argument, even if they are not fully committed to it.”

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Chief Justice John Roberts and associate Justices Brett Kavanaugh, Amy Coney Barrett are now the swing votes. Hasen stated, “Those three justices at the middle are those that matter most.”

This case is based on a dispute over North Carolina’s redistricting map. However, the arguments could have an impact on state rules regarding voter ID, mail voting, and vote-counting. On the grounds of illegal partisan gerrymanders, the GOP-controlled legislature had drawn new maps. The court-drawn map eventually replaced the one that was enacted by lawmakers.

Republican legislators sought to block the new map at U.S. Supreme Court. They argued that the Elections Clause of the U.S. Constitution leaves little — or none at all — for state courts in order to weigh in on laws governing congressional elections.

Although the theory was initially a fringe topic in election law discourse at the time, it is now gaining significant support from conservative election lawyers. It would be a significant shift in the law surrounding election law if it is endorsed by the national high court. This would allow for the rollback of state judicial oversight and give the state legislatures almost unlimited power to make the rules without any intervention from the federal government.

This theory appears to already have a foothold on the Supreme Court. Thomas joined an concurring opinion from Chief Justice William Rehnquist in the fight following the 2000 election. It was this concurring opinion that suggested that state courts had been exceeding their power in election fights.

Alito also wrote a dissenting opinion earlier in the year when the Supreme Court allowed North Carolina’s court-drawn maps to be used at least for the 2022 election. This seemed to support the theory. Thomas and Gorsuch both joined the dissent.

Alito wrote in March that “This Clause could have stated that these rules are to ‘by every State’ and that each State should decide which component, officer, or branch of the state government should exercise this power.” But that is not what it says in the Elections Clause. Its language identifies a specific organ of a state’s government and we should take it seriously.”

Kavanaugh, Barrett, and Roberts are more difficult to read. Not surprisingly, Kavanaugh did not sign the Alito dissent but he did indicate some friendliness towards the theory.

He agreed with the court’s decision that North Carolina’s judicially drawn map should be left in place for now. However, he said it was too close to an electoral election to have them turned over. He said he was in agreement with Alito about the “underlying Elections Clause question” and that both sides had presented serious arguments on their merits.

Roberts and Barrett have less documentation about their positions. Barrett has not written much on election law in her time on the court. She has also not joined the conservative justices who appear to be open to the theory when writing about cases that the court has reviewed on an emergency basis.

Jason Snead (executive director of Honest Elections Project), said that Amy Coney Barrett was a question mark. He authored a friend of the court brief to promote the ISL theory. He is also part of the vast network of groups linked to conservative powerbroker Leonard Leo.

“If she has any questions [during oral argument], that could also be illuminating,” he said, noting that he was hesitant to “read the tea leaves” rather than what justices ask in court.

Roberts may not be happy with the ISL theory.

When the Supreme Court ruled Arizona’s independent redistricting committee was constitutional, the chief justice wrote a dissent. He said that it was “a magic trick in the Elections Clause”, which transferred power from the legislature to the commission through a voter-passed referendum measure. Roberts wrote the majority opinion in 2019 that stated that federal courts cannot police partisan gerrymandering, but that it was open to state courts to do so.

Roberts, however, has shown an increasing institutionalist streak and he seeks to keep precedent intact and preserve the legitimacy of Supreme Court before the public.

Allison Riggs, co-executive director of the liberal Southern Coalition for Social Justice, stated that she will pay attention to the words of the chief justice. Riggs was part of the legal team that challenged North Carolina’s legislative map.

She said, “Having argued Rucho I want to see Rucho’s solution adhered to, so he will be listening to my questions.”

Wednesday’s oral arguments were the second of two important elections-related cases that the court has on its docket for this term. The Supreme Court heard arguments in October on a case involving the federal Voting rights Act and redistricting from Alabama. In this case, the state argued that the landmark civil rights law should be read as “race neutral”. This has resulted in more representation of minorities in Congress.

Although justices appeared chilly to this argument, the court seems to be likely to modify the current framework to determine if minorities are losing their voting power. This would make it more difficult to challenge redistricting maps or other laws.

Because the arguments of proponents for how far they want to go are so varied, there is a wide range in possible outcomes in the case against an independent state legislature. The maximalist argument