Republicans have lost their last legal challenge—at least for now—in support of the wholesale destruction of the democratic process. In a 6-3 Supreme Court ruling on Tuesday, Chief Justice John Roberts rejected the so-called “independent state legislature” theory, which was a kooky plan cooked up by antidemocratic forces to let state legislatures (not the voters, or the Constitution) determine the real winners of federal elections. Democratic self-government, it seems, will survive for at least another election cycle.
The high-profile case decided on Tuesday is called Moore v. Harper. Most people who follow the news are aware that this case is important, but because the case is suffused with legal jargon it’s a little complicated to explain what was at stake, and what was saved by the court’s ruling.
First of all, the case wasn’t directly about the attempted January 6 coup or any other GOP efforts to overturn national elections. It revolves around redistricting maps gerrymandered by the Republican-controlled state legislature in North Carolina. The maps were rejected by the Supreme Court of North Carolina, which ruled that they violated the state Constitution.
North Carolina Republicans challenged the court’s ruling—not on the grounds that the state Supreme Court’s legal reasoning was wrong (an omission that will become important later) but on the grounds that the court had no authority to rule on the constitutionality of the maps in the first place. The GOP asserted that only the state legislature can serve as the final arbiter of what is and is not constitutional when it comes to the rules for federal elections. For legal grounding, they pointed to the Elections Clause (Article I, Section 4) in the US Constitution, which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” This argument was dubbed the “independent state legislature” theory because it assumes that state legislatures are subject to no other legal authority when determining the rules for elections.
You can draw a fairly straight and terrifying line from “state legislatures are the sole and final authority on which redistricting maps are constitutional” to “state legislatures are the sole and final authority on whose votes should be counted, how they should be counted, and which slate of electors is submitted after a presidential election.” I call Moore v. Harper the “coup case” because the independent state legislature theory is essentially the same one pushed by people like Trump lawyer John Eastman and Ginni Thomas after Donald Trump lost the 2020 election. Those coup plotters launched what became known as the “fake elector” scam, which was an attempt to get state legislatures to appoint slates of presidential electors that were different from the ones chosen by the voters in various states, on the theory that the state legislatures get to decide what’s actually constitutional.
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It’s that core, democracy-destroying theory that was dismissed by the Supreme Court in Moore v. Harper. Writing for the majority, Roberts stated unequivocally: “The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.”
In other words, the idea that state legislatures can just set or change the rules, without any judicial or constitutional review, has been thrown in the legal dustbin, hopefully for all time. With any luck, we’ll never have to entertain this ridiculous attempt to sabotage democracy again. If it were up to me, I’d make every lawyer who supported it (Republicans all) walk around with a conal “DUNCE” cap on their head, just so everybody could know those among us who tried to subvert democracy with the kind of argument Maximilien Robespierre would make after three glasses of wine.
But the ruling was not all milk and honey for voters. Yes, Roberts ruled that the decisions of state legislatures are subject to judicial review, but the scope of that review was left purposefully vague. Most importantly, Roberts set up himself and his court as the true final arbiter of what is and is not constitutional, under federal or state election law. So even if a red-state legislature can’t decide which slate of electors to send to Congress, the conservative-controlled Supreme Court most surely can. As I mentioned above, the North Carolina Republicans didn’t argue that their state’s highest court simply got its constitutional analysis wrong. If they had, Roberts (and perhaps alleged attempted rapist Brett Kavanaugh, based on his concurrence in this case) might well have substituted their constitutional view for that of the North Carolina court. Roberts’s opinion explicitly retains the Supreme Court’s prerogative to do just that. The supremacy of the legislature has been averted, but the supremacy of John Roberts is fully intact.
One way to think about Moore v. Harper is that it codifies the Supreme Court’s decision in 2000’s Bush v. Gore. Legal nerds will remember that, back when the Supreme Court appointed George W. Bush as president, it assured the public that the ruling was a one-off case that should hold no precedential value. That was never really true, and now it’s totally false. As election law professor Rick Hasen explained in Slate, the upshot is that the Bush v. Gore scheme of letting the Supreme Court invalidate rulings made by a state supreme court on how to handle election controversies is now fully operational, thanks to Moore v. Harper.
Like the liberals who joined the Roberts opinion, I can more or less live with this, partly because the alternative Republican theory was too great of a threat to democracy, and partly because, ever since Bush v. Gore, I’ve known that a conservative court would hand another election to a Republican candidate should it be given any reasonable chance to do so. If it comes down to one state (like 2000 in Florida) and one state supreme court ruling (like the Florida Supreme Court’s decision to order the recount), I have no doubt that the conservatives would look at the party affiliation of the litigants and rule accordingly. ’Twas always thus. I don’t think Moore v. Harper changes the practical reality we’ve been living under for the past 23 years.
But it is worth pointing out that there was another way, entirely, for the Supreme Court to dismiss this crazy independent state legislature theory and dispense with this case: the legal technicality of mootness. Functionally, the Supreme Court’s opinion doesn’t matter in relation to what maps are actually used in North Carolina, and so the case was moot as an active controversy before the court. That’s because, after the North Carolina court ruled that it did have authority to throw out the state legislature’s maps, the case was essentially relitigated (the procedural setup to give the state court a second bite at the apple can best be explained by the phrase “yada, yada”). By the time the case came around again, the court had a conservative majority, and—surprise surprise—decided that partisan gerrymandering didn’t violate the state’s Constitution after all.
That second ruling makes the Supreme Court’s decision in Moore v. Harper functionally irrelevant. North Carolina will use whatever maps it likes, regardless of the court’s opinion here. The Supreme Court could thus have dismissed this case on mootness, and while that would have been an unsatisfying result—one that would have left the independent state legislature theory alive to be litigated by some other Republican-controlled legislature—it was probably the legally right answer. The first part of Justice Clarence Thomas’s dissent makes the point that the case should have been dismissed as moot, and he’s probably right (and regular readers of this column know just how much I hate saying that).
Still, rejecting the independent state legislature theory now, when there is no active electoral controversy for the justices to insert themselves into, is more politically palatable, and safe, than dismissing it in a case that could determine the outcome of an election. The court might want people to believe that it doesn’t concern itself with politics, but I will bet all the money in my pocket that Roberts wanted to deal with this issue now and not in the fall of 2024, when Trump and the Republicans show up with fake electors certified by independent state legislatures from Georgia and Arizona declaring him the victor of an election he clearly lost. The Supreme Court is not supposed to issue purely advisory opinions, but Moore v. Harper contains some pretty clear advice to antidemocratic Republican forces: Don’t try it.
That all makes sense to me because this case was really about coups d’état: both the one that was tried, and the one that might be tried next time. In Moore v. Harper, Roberts has retained his ability to give a close election to a Republican candidate, but he’s not going to let Republicans just steal one they’ve clearly lost. These days, that counts as a major victory for democratic self-government. When democracy hangs by a thread, you celebrate the man who takes away other people’s scissors, even if he’s keeping them all for himself.
