The supreme court denied a wild election theory. But don’t relax yet | David Daley
Such is the dismal state of the US supreme court that it is genuinely surprising any time the court’s conservative supermajority turns down an opportunity to further distort American democracy to the benefit of their partisan benefactors and enhance the prospects of enduring one-party minority rule.
Moore v Harper – the case from North Carolina involving the so-called “independent state legislature” (ISL) theory, the ludicrous notion that state legislatures have a free hand when it comes to election law and redistricting, unfettered by pesky state constitutions, state supreme courts or even gubernatorial vetos – was satisfyingly swatted away on Tuesday by a 6-3 majority.
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This theory, spawned from a footnote in the then Chief Justice William Rehnquist’s concurrence in Bush v Gore, and nurtured for two decades in the hothouse of conservative legal academia, lacks any grounding in American history, represents a terrifying threat to elections as we know them, and should never have made it this far in the courts.
The decision, written by Chief Justice John Roberts, makes it clear that the constitution’s elections clause does not carve out an exception to the fundamental principle of judicial review. “When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review,” Roberts wrote, in a decision joined by the court’s three liberals and justices Brett Kavanaugh and Amy Coney Barrett.
It’s good news and a welcome sigh of relief. Taken to its extreme – as seems to be the practice in so many conservative state legislatures these days – the ISL theory could have handed state legislatures, many already deeply gerrymandered and beyond the control of state voters, dangerous unchecked powers with regard to election certification and presidential electors. And it could have removed state courts, constitutions, governors and potentially even independent redistricting commissions and ballot initiatives as any meaningful check on runaway legislatures.
But while the headlines proclaim victory for American democracy, and supreme court reporters hoist the chief justice back on their shoulders as a great centrist hope, it’s far too soon to celebrate. Buried within the details of this decision, as well as a short concurrence by Kavanaugh, are the seeds of future cases to come. This decision is hardly the silver bullet antidote to take down this dangerous zombie notion once and for all.
The court’s decision makes clear that the elections clause does not liberate state legislatures from state constitutions and state law, but also that federal courts must not abandon their duty to exercise judicial review. “This Court has an obligation to ensure that state court interpretations of state law do not evade federal law,” Roberts writes.
Furthermore, state courts, according to the decision, must “not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections”.
What does that mean? The court does not tell us. As the NYU law professor Rick Pildes points out, the decision does not adopt any standard at all, set any boundaries whatsoever, or even rule on whether the North Carolina state court exceeded its role. We head into the 2024 presidential election without any sense of what the federal courts believe to be an appropriate and non-transgressive role for state courts to play.
That means that one of the most important lines from the decision might be this one from Kavanaugh’s short concurrence: “In other words, the Court has recognized and articulated a general principle for federal court review of state court decisions in federal election cases. In the future, the Court should and presumably will distill that general principle into a more specific standard such as the one advanced by Chief Justice Rehnquist.”
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The court’s decision invites future cases. (Kavanaugh issued a similar invitation for future cases in a short concurrence in the Alabama redistricting case this month that affirmed what remains of section two of the Voting Rights Act.) They may arrive in the days after the 2024 presidential election. And they could prove crucial in deeply gerrymandered Georgia, Wisconsin and Arizona, three extraordinarily close states that provided President Biden’s electoral college victory in 2020 with the slenderest of margins, and where election deniers, some in the state legislature, made mischief with the results.
A court that has already proven, time and again, its willingness to put the thumb on the scale for its own side in cases at the heart of American democracy may decide those future cases on a case-by-case basis, with no clear standard at all, based on how the individual justices feel about that state supreme court’s interpretation, and perhaps the consequence of that ruling. It’s an uncomfortable position to begin a presidential election, given the fact that, in many states, election deniers are in a stronger place today than they were on 6 January 2021.
There are so few moments to breathe easier these days. Today’s surprising reasonableness from the court offers a respite. It may only be a brief one.
David Daley is the author of Ratf**ked: Why Your Vote Doesn’t Count and Unrigged: How Americans Are Battling Back to Save Democracy. He is a senior fellow at FairVote