In a great and surprising victory for democracy, the Supreme Court has turned aside a dangerous fringe constitutional theory regarding federal elections. It would have let far-right state legislatures rig presidential and congressional elections in violation of their own state constitutions. Fortunately, the 6-3 ruling in Moore v. Harper rejected that theory, at least in its most extreme form.
How did this case begin?
In 2021, North Carolina’s Republican-controlled legislature drew new lines for congressional districts. But they didn’t adopt fair or neutral lines. Instead, they created an unfair advantage for their party. In fact, the partisan gerrymander was so strong that even if voters turned against Republicans in future elections, their party would still win most of the races in the state.
However, the constitution of North Carolina protects free elections. So in early 2022, the state supreme court struck down the partisan gerrymander. Republican state legislators appealed this decision to the U.S. Supreme Court.
A theory to justify a dangerous power grab
State Republicans presented a dangerous argument to the U.S. Supreme Court. It’s based on a line in the Constitution saying that state legislatures set the time, place, and manner for federal elections in their states. (This is called the “Elections Clause.”)
According to the Republican state legislators, it doesn’t matter if they had violated the state constitution. In their view, when it comes to elections for federal offices, the Elections Clause gives state legislatures the final word over any other state entity. Under this theory, it doesn’t matter how much the state constitution protects people’s right to vote, or how flagrantly the legislature violates those rights. The state courts that are set up to protect the people from such dangerous power grabs can’t do a thing.
In legal jargon, it’s called the “independent state legislature theory.” It would eliminate vital checks and balances that protect democracy.
Through most of American history, this crackpot theory would have been laughed out of court. But the far-right legal movement that has exercised so much influence in legal academia and the courts has been pushing this fringe theory. The fact that the U.S. Supreme Court even agreed to hear the case was ominous.
What did the majority do?
Fortunately, the Court thoroughly rejected the theory. The 6-3 opinion by Chief Justice Roberts was joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson.
The Court discussed how judicial review of legislative actions has been “one of the fundamental principles of our society” since the founding era. So the question was whether the Elections Clause created an exception to this “basic principle.”
The majority opinion went over old Supreme Court cases that thoroughly rejected the idea that the Elections Clause somehow nullifies the way state laws are normally passed. For instance, if the Elections Clause meant that only state legislatures could be involved in redistricting, then redistricting bills could never be vetoed by governors. Yet that happens all the time. In fact, in the 1930s, the Court unanimously ruled that the Elections Clause does not prohibit governors from vetoing redistricting bills.
In addition, the Court continued, the framers understood a very basic idea: “[When] legislatures make laws, they are bound by the provisions of the very documents that give them life.” In other words, the framers understood that state legislatures would be acting consistent with their own state constitutions, and subject to the same state-level checks and balances that apply to all state legislation.
Wait, wasn’t this case moot?
Many were expecting the Court to dismiss the case without addressing the constitutional issue. That’s because of a strange and corrupt development in North Carolina.
After oral arguments in Washington DC last fall, there were elections for the North Carolina Supreme Court. Republican candidates gained a majority on the state court, and they immediately took steps to help their state party. They reconsidered the reasoning of the state supreme court’s 2022 decision, and they eventually overturned it in early 2023. They ruled that the North Carolina partisan gerrymander did not violate the state constitution.
Did that mean there was no longer an ongoing case before the U.S. Supreme Court?
The chief justice’s majority opinion said the case was not moot. In part, that’s because the 2023 state supreme court decision didn’t change that court’s position on the federal question before the U.S. Supreme Court. In the original 2022 decision and in the 2023 decision overruling it, the North Carolina Supreme Court was addressing whether the North Carolina legislature had violated the state constitution. Whether state supreme courts have the power to do that was the question before the U.S. Supreme Court.
(There were also other reasons the majority gave for not considering the case moot, having to do with the details of the case’s history in the state courts.)
What did the dissenting justices say?
Justice Thomas, joined by Alito and Gorsuch, would have dismissed the case as moot. Thomas and Gorsuch also made clear that on the merits, they agreed with some version of the “independent state legislature theory.” For them, governors can veto bills on federal elections because the governor’s signature or veto is part of the basic legislative process. In contrast, a lawsuit challenging such a bill is not part of the basic legislative process. Therefore, in their opinion, letting a state court decision have the final word violates the Election Clause.
Fortunately, this dangerous opinion did not carry the day.
What does the ruling mean for the future?
The repudiation of the “independent state legislature theory” is a great victory for the American people. At the same time, the majority opinion included a section that might leave room for trouble in the future.
The Court stated that state courts don’t have “free rein” when interpreting their state constitutions in cases involving federal elections. Federal judges must give significant deference to the state courts in this area. However:
state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.
In one sense, that’s not at all controversial: State constitutions still have to be consistent with the U.S. Constitution, including the Election Clause’s provision that state legislatures set the rules for federal elections in their states. At the same time, it is not hard to imagine far-right judges inaccurately claiming that a state court has “arrogated” the legislature’s role. How federal judges should make that call is a question left for a future case.
As Election Law Blog’s Richard Hasen wrote in Slate, “Chief Justice John Roberts drove a hard bargain.”
Moore v. Harper was a thorough repudiation of an effort to empower partisan power grabs by state legislatures. People retain their ability to challenge partisan gerrymandering of congressional districts based on their own state constitutions. State legislatures are not free to ignore state constitutional protections for the right to vote.
At the same time, this is still a dangerous right-wing Court. The majority has issued decisions that have greatly damaged our democracy, and it will likely continue to do so. While Moore v. Harper is a great victory, it also shows how low our expectations are with the current majority. Rejection of an extreme fringe theory that would imperil democracy should be a given, not a cause for a surprised sigh of relief.