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Supreme Court Rejects “Independent State Legislature” Theory In Moore v. Harper

Supreme Court Rejects “Independent State Legislature” Theory In Moore v. Harper

Majority Opinion by Chief Justice John Roberts: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” Thomas, Gorsuch, and Alito dissented.

The Supreme Court ruled today in Moore v. Harper that state courts had authority to rule upon legislation governing elections, rejecting the so-called “Independent State Legislator” theory. Chief Justice John Roberts wrote the majority opinion. Thomas, Gorsuch, and Alito dissented.

We haven’t provided a lot of prior coverage to this case, but it was one that had the left extremely apoplectic, as we covered in July 2022, “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….

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.

The real political issue is will state courts be empowered to rewrite what the legislature has enacted as to how elections are carried out. That was one of the major gripes for Republicans in the run-up to the 2020 election, particularly in places like Pennsylvania.

The oral argument did not seem to go in favor of the petitioners, accorging to ScotusBlog:

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.

And so it turned out. From the Majority Opinion:

Several groups of plaintiffs challenged North Carolina’s congressional districting map as an impermissible partisan gerrymander. The plaintiffs brought claims under North Carolina’s Constitution, which provides that “[a]ll elections shall be free.” Art. I, §10. Relying on that provision, as well as the State Constitution’s equal protection, free speech, and free assembly clauses, the North Carolina Supreme Court found in favor of the plaintiffs and struck down the legislature’s map. The Court concluded that North Carolina’s Legislature deliberately drew the State’s congressional map to favor Republican candidates. In drawing the State’s congressional map, North Carolina’s Legislature exercised authority under the Elections Clause of the Federal Constitution, which expressly requires “the Legislature” of each State to prescribe “[t]he Times, Places and Manner of ” federal elections. Art. I, §4, cl. 1. We decide today whether that Clause vests state leg 2 MOORE v. HARPER Opinion of the Court islatures with authority to set rules governing federal elections free from restrictions imposed under state law….

The question on the merits is whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law….

Since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts….

We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.


More from the Majority Opinion:

In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution….

Were there any doubt, historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. We have long looked to “settled and established practice” to interpret the Constitution….

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. “State courts are the appropriate tribunals . . . for the decision of questions arising under their local law, whether statutory or otherwise.” Murdock v. Memphis, 20 Wall. 590, 626 (1875). At the same time, the Elections Clause expressly vests power to carry out its provisions in “the Legislature” of each State, a deliberate choice that this Court must respect. As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law….

We hold only that 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….

State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution. Because we need not decide whether that occurred in today’s case, the judgment of the North Carolina Supreme Court is affirmed.2

2 As noted, supra, at 5–6, the North Carolina Supreme Court withdrew the opinion in Harper II, which addressed both the remedial maps developed by the General Assembly and an order by the trial court implementing an interim plan for the 2022 elections. The remedial order, having been withdrawn, is not before us, and our decision today does not pass on the constitutionality of any particular map adopted by the state courts.

Note that last footnote – the NC Supreme Court already has flipped ideologically and has adopted a new map. Since SCOTUS is sending this back to the NC Supreme Court, the ultimate outcome really isn’t decided by this decision. It was a hypothetical exercise that federal courts are not supposed to engage in.

The heroic and brilliant Justice Thomas zeroed right in on this in his dissent, joined by Gorsuch and in part by Alito:

This Court sits “to resolve not questions and issues but ‘Cases’ or ‘Controversies.’” Arizona Christian School Tuition Organization v. Winn, 563 U. S. 125, 132 (2011); see U. S. Const., Art. III, §1. As a corollary of that basic constitutional principle, the Court “is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.” St. Pierre v. United States, 319 U. S. 41, 42 (1943) (per curiam). To do so would be to violate “the oldest and most consistent thread in the federal law of justiciability.” Flast v. Cohen, 392 U. S. 83, 96 (1968) (internal quotation marks omitted).
The opinion that the Court releases today breaks that thread. It “affirms” an interlocutory state-court judgment that has since been overruled and supplanted by a final judgment resolving all claims in petitioners’ favor. The issue on which it opines—a federal defense to claims already dismissed on other grounds—can no longer affect the judgment in this litigation in any way. As such, the question is indisputably moot, and today’s majority opinion is plainly advisory. Because the writ of certiorari should be dismissed, I respectfully dissent….

This is a straightforward case of mootness. The federal defense no longer makes any difference to this case— whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same. The majority does not seriously contest that fact….

In sum, there is no issue before this Court that can affect the judgment in this action. As such, the question presented is moot, and the writ of certiorari should be dismissed.

The people happy that judges can rewrite election laws to help Democrats are happy. They won’t be so happy when it is a Republican state court rewriting legislation to help Republicans:


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Since the state legislature is created under the state constitution, the state legislature is required for follow that states constitution.

therefore as long as the state legislature follows the state constitution, then the independent state legislature remains valid. ie the state legislature can not violate the state constitution.

    ThePrimordialOrderedPair in reply to Joe-dallas. | June 27, 2023 at 1:52 pm

    A State Constitution cannot amend the US Constitution. Powers given to entities by the US Constitution cannot be changed by the State.

      And, the SCOTUS has a history of giving itself powers that were never numerated in the Constitution. Ask Marbury.

      Prime – that is not what I stated

      A) the Election clause in the US constitution provides that the “state legislature ” has full authority to make the rules for that state. We do not disagree on that point.

      B) the state legislature for each state is created under each state’s constitution. As such, what ever actions the state legislature takes under the US constitution, the state legislature must still follow that states constitution.

        Concise in reply to Joe-dallas. | June 27, 2023 at 7:24 pm

        The problem is that courts, state or federal, don’t really feel bound by any constitution. So what if the Constitution says “Legislatures” set the rules? What they really meant was the legislature following judicial review. They just forgot to add that so we’ll just put that in for them. But an even bigger problem is that this worthless hack schmuck Roberts has now decided that the Court can issue advisory opinions. May be the beginning of a whole new era of S.Ct. legislation masquerading as legal opinions, especially when the left really takes control, which seem far more likely now.

        ThePrimordialOrderedPair in reply to Joe-dallas. | June 27, 2023 at 8:07 pm

        As such, what ever actions the state legislature takes under the US constitution, the state legislature must still follow that states constitution.

        Not for responsibilities specifically assigned to it in the federal Constitution. The Constitution did not assign the task to “the State”, which it certainly could have, but to the State legislature, specifically and independently.

        In like manner, there are several responsibilities that the Constitution assigns only to Congress, for which the Judiciary and the Executive have no input.

        Aarradin in reply to Joe-dallas. | June 28, 2023 at 1:15 am

        Again, the State’s Constitution cannot then grant the State’s Courts the power to override the Legislature’s drawing of Districts, since the US Constitution specifically authorized only the State’s Legislature to do this.

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.

.. of course, Joe Manchin got snookered on the Anti Inflation Act allowed the EPA to go ahead anyway … then Joe Biden screwed him.

This sounds like a ruling in favor of an activist court, and vote breakdown kind of supports that.

    Concise in reply to Eddie Baby. | June 27, 2023 at 7:25 pm

    I think we can also draw from this that Kavanaugh and Barrett are essentially worth less than a bucket of warm spit. Roberts is far below that bucket o’spit.

      gonzotx in reply to Concise. | June 28, 2023 at 12:57 am

      Exactly. I immediately got worried about little ms Amy whey Feinstein couldn’t praise her enough before her vote….

      And never trust women who dress like a polygamist

RepublicanRJL | June 27, 2023 at 11:33 am

and yet, isn’t this EXACTLY what SCOTUS just handed down 6/27/23 decision, that judges can overrule and override the legislature, even if it’s in the state constitution like Pennsylvania?

“The real political issue is will state courts be empowered to rewrite what the legislature has enacted as to how elections are carried out. That was one of the major gripes for Republicans in the run-up to the 2020 election, particularly in places like Pennsylvania.”

Go figure! The Supreme Court decided that courts could not be cut out of the process.

IMO, this is a bad decision with lots of potential for future mischief. SCOTUS seems to be opening the door for judicial review of explicitly granted discretionary legislative powers not simple questions of constitutional conflicts of an ordinary statute.

Why not allow the same level of deference to the Legislature in their exercise of an explicit constitutional power that the Executive routinely receives in exercising discretion of a mere statute? Such as discretion over enforcement of immigration laws as an example…..

Fat_Freddys_Cat | June 27, 2023 at 11:57 am

I’m puzzled by this and some of the other decisions. I was loudly and rudely assured that the Supreme Court had been packed with Nazis and that Sacred Democracy was thereby doomed. The results don’t seem to be lining up with that theory.

We are not winning in the courts

Look at all the strike downs of anti grooming legislation

We are so screwed , common sense is a crime

Jefferson was right

Pretty much we are at the abyss

Do we have the courage

drsamherman | June 27, 2023 at 1:14 pm

Does that mean that a legislature can then simply amend its state constitution to remove jurisdiction from its state courts for federal election matters and place said matters solely in the purview of the legislature? It seems to follow that the SCOTUS is saying that the states must follow their own constitutions, but if those constitutions removed jurisdiction for election disputes from their own courts, would they not be in compliance with this ruling?

    I think they would.
    The problem with doing that lies with actually amending the state constitution, of course.

    randian in reply to drsamherman. | June 27, 2023 at 11:32 pm

    What would happen is that the state courts would rule that changing the state’s constitution is unconstitutional, never mind that the whole point of amending a constitution is to make constitutional what once was not (or vice versa).

The Gentle Grizzly | June 27, 2023 at 1:14 pm

We sure are doing well with that “6-3 conservative majority”.

ThePrimordialOrderedPair | June 27, 2023 at 1:43 pm

It’s amazing that the Founders thought to give state legislatures such a power and responsibility, specifically, but forgot to add “subject to judicial review” when the SCOTUS tells us that they really meant to put that in. Maybe the Founders had run out of ink? It happens.

ThePrimordialOrderedPair | June 27, 2023 at 1:46 pm

This is the SCOTUS’ version of the Sotomayor Rule:

“[T]he court of appeals is where policy is made”

Robed overlords decide they get to always be supreme overlords. News at 11.

Is this entire decision dicta? If an actual controversy with the same or similar facts comes before a future court, can that future court ignore this decision entirely? Could an argument be raised that it should do so?

Because we need not decide whether that occurred in today’s case
If that issue didn’t need to be decided, then why the heck did you take the case? You wasted breath, pixels, and ink on an opinion that basically says “Well, we really don’t want to say anything, but…”.

    GWB in reply to GWB. | June 27, 2023 at 2:28 pm

    And I see that is Thomas’ exact dissent. He doesn’t seem to disagree with the decision but with they’re even making it. Good.

    If they had a case to actually turn back and have someone redo it, this wouldn’t be a bad decision – if a little mealy-mouthed in its writing. We certainly shouldn’t let state legislatures override their constitutions, or what good would those constitutions be? But we also can’t let state judiciaries simply obliterate things the legislature has done which are placed specifically in their bailiwick by the US Constitution.

    The problem with this isn’t whether the courts should have the power to do it. The problem with the NC court was that the people holding that power abused it. Fortunately the people were able to correct that problem for the time being. (I think there should have negative consequences aside from losing their seat for those jurists. But that’s me.)

      DaveGinOly in reply to GWB. | June 27, 2023 at 3:27 pm

      “Mealy-mouthed”. Absolutely.
      How about “No state legislature, in the making of its election rules, shall ignore its state’s constitution, nor shall any state court, in ruling upon the legislature’s determinations for elections, ignore its constitution nor the US Constitution.”

      But does this really need to be said? These days, I guess so.

I don’t object to justices striking down election laws based on clear readings of state constitutions, Dem or Republican either way. I *do* object when these same justices then pick up a pen and proceed to write their own laws, then declare there is no alternative but to follow their decrees.

henrybowman | June 27, 2023 at 3:53 pm

An interesting codicil to this issue is the theory that state legislatures can pass elections laws without requiring approval of or fearing a veto from the state executive. Work is proceeding on this basis in Arizona.

    DaveGinOly in reply to henrybowman. | June 27, 2023 at 6:00 pm

    That’s an interesting thought. But within the doctrine that when making election rules, a state’s legislature must abide by its constitution, said constitution usually requires the governor’s approval of all legislation. The remedy to a governor not giving his approval is an override of the veto, which is a display of overwhelming legislative support, thereby still adhering to the US Constitution’s requirements for election rules.

    Was the US Constitution written this way to accommodate election rules made by legislators without the governor’s approval, but via a veto override? That is, to avoid inferring that the rules governing elections require the governor’s approval? Such an interpretation would avoid putting the US Constitution into conflict with a state’s constitution and still admit of rules enacted by the legislature, even over the governor’s veto.

      henrybowman in reply to DaveGinOly. | June 28, 2023 at 11:47 pm

      I understand your objection, but in particular, the Arizona state constitution is the primary source of this stratagem, the US constitution only in passing. (I will admit I am not 100% onboard with the necessary interpretation of the state constitution’s language.)

chrisboltssr | June 27, 2023 at 4:06 pm

It’s time to go back and revisit Marbury v. Madison.

Marshall did not “invent” the idea of judicial review in Marbury, as so many otherwise intelligent people seem to insist. It is a myth.

The Constitution, at Article VI defines itself as the supreme law of the land. In the same article, the Constitution says that all judges are bound by it. The authors of the Constitution knew exactly what that language would authorize and anticipated that the courts would settle controversies over government acts and legislation. Such authority was mentioned in both the Federalist Papers and in debate at the federal convention (as recorded in Madison’s Notes of the Debate in the Federal Convention). At the convention it was remarked upon by three different convention attendees, and no opposition was raised to their presumption that judicial review was within the scope of the courts’ authority.

Federalist Papers

Madison noted that the “success” of acts of Congress would “depend on the executive and the judiciary departments, which are to expound and give effect to the legislative acts.”

Notes of the Debates in the Federal Convention of 1787

July 21
Mr. L. Martin:
“And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character, they will have a negative on the laws.” (Can’t get plainer than that. DG)

Mr. Rutledge:
“The Judges ought never to give their opinion on a law till it comes before them.”

July 23
Mr. Madison:
“A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” (Here Madison himself, whose administration ended up on the short end of the stick in Marbury v Madison acknowledges the authority of judges to strike unconstitutional legislation. DG)

    henrybowman in reply to DaveGinOly. | June 28, 2023 at 11:54 pm

    A very nice compilation, thank you… but I’ll play the same card anti-gunners do when they claim that “not all of the Founders agreed with the side issuing these quotes, and the resulting document was a compromise that those quotes don’t faithfully represent.”

    In particular, Jefferson:

    For intending to establish three departments, co-ordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scarecrow… The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.

    You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence… But the executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power is confided to them by the Constitution.

This abject trash decision co-opts the notion of separate branches of government, each with explicit constitutional authority, and none subordinate to another, and renders (co-equal branch) state legislatures subordinate to state courts, and ultimately federal courts, provided that the courts, when ruling lord over the constitutional authority of the legislature, do so in a “respectful manner”. The legal equivalent of “you must bend over, but I’ll be gentle.!” The legislatures should throw this back in the face of the courts, and challenge the the courts’ presumptuous and dangerous attempt to subordinate co-equal branches of the government.

That Mr Roberts is right good obama judge

    BierceAmbrose in reply to gonzotx. | June 29, 2023 at 4:23 pm

    Roberts doesn’t so much go with a particular ideology, or party. Roberts tends to go with non-interference, steering decisions and opinions to minimize the court’s interference with other government.

    Since one ideological side, using one party, is all about all govt, all the time, he looks like he’s on a side.

So what if the states reject the court and follow the plain language of the Constitution? The law should be plainly interpreted so that even those with a low level of education can understand it. The law is not intended to be the sole domain of lawyers.

What does SCOTUS do that flipping a coin cannot?

BierceAmbrose | June 29, 2023 at 4:24 pm

“…GOP-controlled state legislatures to effectively overturn the will of the people in their states.” — Mehdi Hasan

So, legislatures don’t so much represent the will of the people. Courts do.

Which “people”, one wonders.