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 TO FOLLOW
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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