To follow up on my previous post on this topic, it’s worth considering whether the meaning of the term “legislature” in the relevant Elections and Electors Clauses of Articles I and II should be considered nonjusticiable under the political question doctrine. If judicial enforcement of this constitutional term presents difficult line-drawing questions, as I argued in that post, then maybe that line-drawing is so difficult as to lack “judicially manageable standards” and thus is incapable of ordinary federal-court enforcement under Marbury v. Madison.
Invoking the political question doctrine in this way to reject the “independent state legislature” doctrine claim in Moore v. Harper would be a nicely ironic twist in the aftermath of Rucho v. Common Cause. As ELB readers know well, in Rucho the Court—by a 5-4 vote over a vigorous dissent by Justice Kagan—invoked the political question doctrine to bar federal-court consideration of claims that partisan gerrymandering violates various provisions of the federal Constitution, including the Elections Clause of Article I. The Rucho majority did so because it viewed the federal judiciary to be incapable of drawing the line between impermissibly excessive and permissibly tolerable degrees of partisanship in redistricting.
Moore v. Harper involves a state supreme court invoking the state’s constitution to limit partisan gerrymandering in the way that Rucho made off-limits to federal courts. The invocation of the so-called “independent state legislature” doctrine in Moore v. Harper is an effort to incapacitate the power of state supreme courts to rely on state constitutions in this way, by having the federal Supreme Court now tell state supreme courts that they can’t do what Rucho refused to do. But the very premise of Rucho could be invoked to produce just the opposite outcome in Moore v. Harper: federal courts must let state supreme courts interpret their state constitutions as they wish because the difficulty of drawing the line between permissible and impermissible reliance on state constitutions by state courts is too difficult to be “judicially manageable” for federal court and thus must be considered beyond the scope of their competence under the political question doctrine.
Invoking the political question doctrine to defeat the “independent state legislature” claim in Moore v. Harperwould eliminate the line-drawing problem provoked by recognizing, as considered in my previous post, extreme cases in which the authority of state legislatures under the Elections and Electors Clauses would be improperly usurped. For example, it would be unconstitutional for a state constitution to provide that the state’s governor, rather than the state’s legislature, have the authority to choose the “manner” of appointing the state’s electors, but the political question doctrine would bar any federal-court remedy for that unconstitutionality on the ground that the federal judiciary would be incapable of making a principled distinction between that case and other cases in which state constitutional provisions that limit state legislative power over choosing the manner of appointing the state’s electors would be acceptable under the Electors Clause of Article II. After all, the RuchoCourt recognized that extreme partisan gerrymandering does violate the federal Constitution. The problem, according to the Rucho Court, was the proverbial slippery slope: the Court wasn’t going to let federal judges invalidate any extreme partisan gerrymander unless it could discern the boundary between invalid and valid. The same logic could be applied in Moore v. Harper.
Before embracing this use of the political question doctrine to render “independent state legislature” claims nonjusticiable under Article III, however, here’s a hypothetical to ponder. Suppose in the summer of 2024 a state supreme court nullifies the use of vote-by-mail in the upcoming November election despite the state legislature having previously enacted a statute to provide for no-excuse vote-by-mail in the state’s elections, including the popular vote used to appoint presidential electors. The state supreme court that issues this ruling is bitterly divided along partisan lines: the four members of the court in the majority are all Republicans, and the three dissenters are all Democrats.
What authority does the four-member majority rely upon to nullify the legislatively enacted vote-by-mail in the state? The majority cites nothing more than a non-specific provision of the state constitution mandating “free” or “fair” elections in the state. The majority asserts that vote-by-mail is inherently untrustworthy, echoing former President Trump’s claims of the same nature. The majority says that elections can be “free and fair” only if ballots are cast in person, under the direct supervision of poll workers and poll watchers, and therefore the majority orders—contrary to the provisions of the applicable state statutes—that only ballots cast in polling places on Election Day (November 5, 2024)—
The three-judge dissent of course is absolutely livid, asserting that the four-member majority is engaging in vote suppression, motivated solely by partisanship. It’s a blatant effort by the four-member majority, the dissent fumes, to rewrite the rules for conducting the upcoming election, contrary to the rules that the state legislature adopted, which embraced the increasingly prevalent policy of no-excuse vote-by-mail employed by many other states. It’s an entirely inappropriate invocation of the state’s constitution to use it, as the four-member majority has—the dissent continues—to eviscerate the legislative choice to adopt vote-by-mail. But the dissent has only three votes, and the majority prevails with four.
Should the “independent state legislature” doctrine, enforceable in federal court, prevent the majority of the state supreme court from getting away with this blatantly partisan usurpation of the state legislature’s authority? I think that question can be reasonably argued both ways.
I also think that this hypothetical shows that the “independent state legislature” doctrine, properly understood and appropriately circumscribed, is a tool to prevent the kind of Trumpian subversion of the electoral process that many of us fear. To be sure, other federal-law principles, like due process, could be invoked to prevent a state supreme court from nullifying vote-by-mail ballots after they have been cast. But the hypothetical has the state supreme court issuing its subversive order in the summer of 2024. Eliminating vote-by-mail for the November 2024 election just a few months in advance would be hugely consequential, given the expectation of many voters in the state of being able to rely upon this method of voting as explicitly provided by state statute. But there is no federal constitutional right to a no-excuse vote-by-mail system, and if a state supreme court purported to eliminate it before the upcoming election started, the only recourse in federal court might be reliance on the “independent state legislature” doctrine.
To my mind, it’s a point to consider before reaching the conclusion that “independent state legislature” claims should be entirely nonjusticiable in federal court.