Today was oral argument at the U.S. Supreme Court in Moore v. Harper, a case considering the role of state legislatures as opposed to state courts in deciding how federal elections are conducted. The Elections Clause of the Constitution (Article I, Section 4) seems to answer the question:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” [emphasis added]
Simple, right?Yet Democrats are absolutely freaking out over the possibility the so-called “independent state legislature theory” would prevail at SCOTUS. We covered the early stages of the freakout in early July 2022, when SCOTUS agreed to hear the case, “The Nightmare Scenario SCOTUS is Plotting For the 2024 Election Takeover” – Fear Mongering Over Upcoming Moore v. Harper Case:
Here we go again. The End of Democracy. You know, like when the Supreme Court ruled that abortion rights should be determined through the state electoral process, not by federal courts. And when it declared that the EPA could exercise powers over major issues only if the duly-elected Congress clearly enabled such action in legislation. Such a threat!Here we go again. The politicians and media that brought you those End of Democracy narratives, and the Russia Collusion hoax, have a new demon to spend the next several months foaming about: Moore v. Harper, which the Supreme Court recently agreed to hear next term….A Petition for a Writ of Certiorari, asking the court to hear the case, was filed in due course. On June 30, 2022, the Court granted the Petition, and agreed to hear the case, with the following Question Presented:
Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.
So that’s what all the fear mongering is about. The fear is the the Supreme Court may interpret the Elections Clause according to its plain terms.
Yet the proposition is dismissed by Democrats as fringe and extreme MAGA Election Theory.
I listened to the recording of the oral argument. Frequently oral arguments help in understanding a case, but not this time. At least not for me.
So much of the questioning and arguments seemed circular. But the extensive discussion of and questioning about SCOTUS precedent made pretty clear the approach at issue is not fringe. The attorney representing the appellants seemed to get bogged down in arguing a distinction between procedure and substance supported reversing what the NC court did, but it didn’t go well for him.
I make no predictions as to outcome, but I do note the way the Question Presented (quoted in full above) was presented seems to suggest a majority of the court is inclided to overrule what the North Carolina Supreme Court did here, which was to rewrite election redistricting based on vague standards:
“…. replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.”
Amy Howe at ScotusBlog suggests the Court seems unlikely to adopt a “broad” approch:
The Supreme Court on Wednesday signaled that it may not be ready to adopt a sweeping interpretation of the Constitution, known as the “independent state legislature” theory, that would give state legislatures broad power to regulate federal elections without interference from state courts. Although some justices appeared receptive to that theory during nearly three hours of argument, it was not clear that there was a majority to endorse it, even as other justices focused on a narrower version of the theory that would preserve at least some role for state courts in enforcing state laws or the state constitution….
Ian Millhiser at Vox puts his hopes on ACB:
Trump-appointed Justice Amy Coney Barrett tossed cold water on the North Carolina GOP’s hopes that a majority of the justices would wholesale adopt this long-discredited theory. There is still a risk that the Court could adopt a milder version of the ISLD, in effect making itself the final arbiter of some election cases it doesn’t currently have jurisdiction over.
So what’s this all about?
Democrats’ ability to have state Supreme Courts take power away from state legislatures as to the rules governing federal elections. We saw that in multiple states in 2020, particularly in Pennsylvania. So this is about power, not principle.
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