SCOTUS Rules in Moore v Harper Election Case: Read It For Yourself

In a 6-3 decision penned by Chief Justice John Roberts, North Carolina Republican legislator’s advancement of “independent state legislature theory” was rejected.

Washington Post:

The Supreme Court on Tuesday rejected the theory that state legislatures have almost unlimited power to decide the rules for federal elections and draw partisan congressional maps without interference from state courts.

The Constitution’s Elections Clause “does not insulate state legislatures from the ordinary exercise of state judicial review,” Chief Justice John G. Roberts Jr. wrote in a 6 to 3 decision.

Under the theory advanced by North Carolina’s Republican legislative leaders, but rejected by the court, state lawmakers throughout the country would have had exclusive authority to structure federal elections, subject only to intervention by Congress.

The “independent state legislature theory” holds that the U.S. Constitution gives that power to lawmakers even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions.

But Roberts wrote that was wrong, within limits.

“Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein,” he wrote. 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.”

Roberts’s opinion was joined by Justices Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson.

Justice Clarence Thomas said the case had become moot because of subsequent action by the North Carolina Supreme Court, and the court should have dismissed the case. But, joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch, he also disagreed with Roberts’s reasoning.

Last year when Moore v Harper went before The Court, OT’s own Burt Likko did an explainer including this:

But the bigger issue is the one raised during the 2020 election by a guy who is currently the Republican nominee for Governor in Pennsylvania, Doug Mastriano. Mastriano pointed to a DIFFERENT election clause in the Constitution, article II, section 1, clause 2, which says in relevant part:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress … .

The critical issue being the bit that reads “in such Manner as the Legislature thereof may direct,” which sounds a lot like the language in the Congressional Election Clause. Because if the Constitution’s wording drilling down to the state legislature and ONLY the state legislature also applies to a state’s choice of Presidential Electors….

Why, that would mean that a state legislature could, and debatably would be required, to cancel elections for President of the United States. The state’s legislature could decide on its own, without consulting the state’s voters, who the state’s electors will be. At least one Republican candidate for a Governor’s seat this cycle has signed off on that being something that he might try to make happen.

Just so you know: Democrats control both houses of eighteen states, which combine to total 205 electoral votes. Republicans control both houses of thirty states, which combine to total 305 electoral votes.[4] Who knows what the hell would happen with the District of Columbia, which doesn’t have an independent legislature (anything the City Council passes can be overruled by Congress). Really, it wouldn’t matter. If pushed to its logical extension, this could lock up the White House for Republicans for as long as they can hold 270 electoral votes’ worth of state legislatures, given effectively unlimited freedom to gerrymander as they saw fit.

This wouldn’t mean a permanent national government controlled by Republicans, necessarily, but a very durable one, one which would likely control the House of Representatives and the White House pretty easily until and unless a massive political shift occurred, and one in which the nature of the Senate would give Republicans a significant advantage at achieving a majority there, too.

Now, let’s be clear, that’s an unlikely end game. Before the Great Election Denial Chaos of 2020-2021, we would have laughed this potential off. Today? Realistically, that sort of scenario is still pretty far-fetched, but it is palpably easier to imagine than it would have been even three years ago. But it’s still something I have to regard as so politically unpalatable that I don’t believe it will come true. I have a hard time imagining voters standing for being disenfranchised from voting for President, even if those voters do like the result. Not even the likes of Brad Raffensperger or Mark Brnovich, both highly partisan Republicans and both of whom were under great political pressure after the 2020 election to cheat for Trump, were willing to superimpose their partisan preferences over the voters of their states. The norm of democracy is strong still, despite some loud voices trying to erode it, and the endgame where state legislatures choose Presidential electors instead of voters after generations of popular voting will be, I have to believe, more than the vast majority of Americans will bear.

The real danger is that it will remove yet another check against gerrymandering, which is already too subtle a political trick for most of the public to notice and already entering a brave new era of maximizing partisan control, for both parties, where each holds sway. That will push our legislatures out of alignment with the general mood of the electorates they represent. That will cause disengagement amongst the citizenry and move laws further away from what the voice of the people demands. I don’t think this will overturn democracy as we’re told to fear. I think it will erode it, furthering a destructive process already underway. I hope this doesn’t come to pass, and I try to remember my own advice about counting noses on the Court before oral argument.

But it’s becoming harder every Term to not succumb to dread.

Breathe easier, Burt, and well done.