(Rick Hasen) Live-Blogging the Supreme Court’s Oral Arguments in the Moore v. Harper (Independent State Legislature); Now UPDATED with Analysis and Reason to Think Court Will Reject Maximalist Version of ISLT

[This post has been updated.]


After almost three hours of oral argument, a divided Supreme Court appeared searching for a middle ground to hold that in really egregious cases state courts can violate the federal constitution when they apply state constitutions (or potentially to interpret state statutes) to limit a state legislature in regulating federal elections. Such a ruling would inject federal courts into delicate state election law disputes, sometimes in the midst of elections in extreme cases. But it would not go so far as to turn every state court election decision (or election administrator interpretation) into a new federal lawsuit. It would be a bad ruling, but not an awful one.

Here’s how the Justices broke down at argument: there are three Justices who absolutely reject the independent state legislature theory. These are the three liberal justices: Jackson, Kagan, and Sotomayor. There are three Justices who appear to accept the doctrine pretty broadly: Alito, Gorsuch, and Thomas. So that leaves the Chief Justice, and Justices Barrett and Kavanaugh. They all seemed to be looking for a middle ground, one that would impose some meaningful limits on state supreme court opinions going off the rails in purporting to interpret state constitutions but override completely a state’s rules for setting the time, place, and manner for federal elections.

On the one hand, these pivotal Justices don’t like the maximalist opinion of the Legislators, but they see that there must be some limit for an out-of-control state court. They they could well adopt something like Chief Justice Rehnquist’s concurrence in Bush v. Gore: that sometimes a state court goes so far in interpreting a state law (in that case a state statute, in this case a state constitution) applying to federal elections that it becomes unconstitutional. Given the Legislators’ concession in this case (that Don Verrilli hammered home in this oral argument) that for purposes of this argument, the state supreme court correctly applied the state constitution, then these Justices should have to side with the state supreme court reining in the partisan gerrymandering in this case. What they will actually do is another question because oral argument is not a perfect predictor of what the Court will do.

In my view, the way to deal with this issue of where to draw the line is not through the elections clause but through the Due Process Clause. The leading case here is an 11th Circuit 1995 case, Roe v. Alabama, which says that sometimes a state court decision is so arbitrary and capricious that it is not really engaged in judicial review. That would present a very high standard to meet, but one that could be met in extreme circumstances. Going this route, would not cause a flood of new election litigation that would come (as I argue in my amicus brief) with the Legislators’ maximialist views of the independent state legislature doctrine.

Below you will find my notes on the oral argument as it was happening:

This morning the Court hears oral argument in the Moore v. Harper, a case raising the so-called Independent State Legislature theory. Doctrinally, at issue is whether state courts may apply state constitutions to rein in a legislature’s partisan gerrymandering in a federal election, or whether such conduct is barred by the Elections Clause in Article I, section 4 of the Constitution (which gives state “legislatures” the ability to set rules for congressional elections, subject to congressional override). I filed this amicus brief, with the good folks at Manatt, and Nat Bach and I wrote Nat Bach wrote this piece at Slate, “The Supreme Court Is Headed for a Self-Imposed Voting Caseload Disaster.”

Below I will blog what I hear from oral argument, which begins at 10 am ET.

Up first is David Thompson, for the North Carolina Republican legislatures. He’s talking about how the Elections Clause, in his view, gives state legislatures a unique “federal function” when it comes to setting the rules for federal elections.

Justice Thomas opens up by asking Thompson a softball about why there is federal jurisdiction here, compared to if this were review of state redistricting.

Chief Justice Roberts asks a harder question: how can this case be squared with Smiley v. Holm, a case where the state’s governor gets to veto a federal redistricting plan? The governor is not the Legislature, Roberts notes. This undermines the argument of a free-floating legislative power in federal elections. Thompson responds and says the governor’s role is procedural (and that he’s not asking for other precedent to be overruled). Roberts rejects this substance/procedural distinction, seems quite skeptical that Thompson has drawn a distinction with Smiley that works.

Justice Barrett asks whether the substantive/procedural distinction is rooted in the constitution, or is this just a way to show that the cases are not in conflict.

Justice Jackson asks why the question of the state legislature is a creature of the state constitution. She seems skeptical of the distinctions Thompson is drawing. Justice Jackson is trying to draw in the Court originalists to reject Thompson’s free-floating view of the Legislature.

Justice Sotomayor accuses Thompson of “rewriting history.” Clear that Jackson and Sotomayor are opposed to ISLT.

Justice Barrett asks if the Elections Clause didn’t exist, would state legislature have the power to draw the federal districts? If they did, the elections clause is not a delegation. This seems like a question to help Thompson, but I don’t think he understood the point.

Justice Kagan reads Smiley as saying that the Legislature is subject to constraints. Smiley was about the governor as a constraint on the legislature, and this case is about the state court as a constraint. Look at the ordinary constraints. Kagan finds the Legislator’s theory as inconsistent with Smiley, Az. Leg., and Rucho.

As expected, the three Democratic-appointed Justices (Kagan, Jackson, Sotomayor) are rejecting the ISLT.

The three Justices to watch here are Kavanaugh, CJ Roberts, and Barrett. So far, Roberts seems skeptical of Thompson’s arguments under precedent, but Barrett seems more sympathetic. Nothing from Kavanaugh yet. Nothing yet from Gorsuch or Alito either, but they’ve shown themselves already sympathetic to ISLT in earlier emergency cases.

Sotomayor really hammering the substantive-procedural distinction. Justice Jackson piles on, as does the Chief Justice.

Justice Alito says that state courts and state administrators are going to have to figure out how to interpret statutes. (This is the issue I raised in my amicus brief.) Thompson says interpretation of statutes is not at issue in this case, and issues can be delegated to administrators. Alito asks what if a statute says that elections must be free, and a state court rules that the statute bans partisan gerrymandering. But Thompson says no, that would not be allowed. That’s goes against Thompson’s earlier point.

Kavanaugh says that Rehnquist’s position in Bush v. Gore was that state courts can apply a deferential position, and only police the big outliers. Kavanaugh says the Legislators go further here.

Seems like Kavanaugh and even Alito don’t like the lines that Thompson is drawing. That said, they could still rule for the Legislators, but not necessarily under their theory.

Little shoutout to the efficiency gap (from my co-blogger Nick Stephanopoulos) and an oblique reference to Sam Wang (a mention of a neuroscientist drawing lines).

Justice Kagan suggests that if ISLT theory is allowed, it might allow state legislatures to do extreme gerrymandering and mess with election certification rules. It gets rid of checks and balances at a time we need it the most.

Gorsuch comes in with a softball. No reason to think he’s moved off his acceptance of ISLT. He thinks the federal constitution will be enough to protect voters.

Kavanaugh raises amicus brief from the Conference of Chief Justices and what the history shows about applying state constitutions in federal elections. He asks about the weight of historical practice.

Barrett asks if Thompson agrees with Bush v. Gore concurrence. He says he does, but this case is not about interpretation of a state constitution but about understanding how to read a statute. The BvG standard is “novelty.” That’s going to be a hard standard to apply. Barrett says substance-distinction line is hard too. She asks whether it is a judicially manageable standard. Barrett sounds skeptical of Thompson’s attempt to distinguish precedent. Again, she’s skeptical of the Legislator ‘argument. Doesn’t mean she won’t side with the Legislators, but probably not under the theory this lawyer is offering.

Justice Jackson pushes hard on the role of the Constitution and delegation.

Neal Katyal is now up for respondents, Common Cause. He says this case would call more state constitutional cases into question than any other case. He then responds to Thomas, pointing to history and practice.

Gorsuch tries to distinguish between the power of the governor to veto, and the power of a state court to apply a state constitution to limit a legislature’s power. He’s not buying Katyal’s argument.

Alito is now up. He too is opposed to Katyal’s arguments.

Again, no reason to think Gorsuch, Alito, and Thomas are going reject ISLT.

Chief Justice Roberts asks about an abstract clause and whether that matters, suggesting it doesn’t create a manageable standard. Roberts is looking for some limiting principle. (I think the answer is that the due process clause provides this limit on a state court going off the rails and acting in an arbitrary and capricious way. See Roe v. Alabama).

The second round to Katyal seems to be going back over the question of when federal courts can come in and police an out of control state supreme court. Katyal says it is highly deferential and must be very rare (under Rehnquist concurrence of Bush v. Gore, or perhaps there should be even a higher standard).

Gorsuch is being incredibly nasty and dismissive of Katyal when he’s not acquiescing to his points. He seems the most likely one (aside perhaps from Thomas) to adopt a maximalist position on ISLT. That would empower state legislatures against state courts, and enmesh federal courts and the Supreme Court in a ton of state law cases that ordinarily would remain only in state courts.

Not much focus today on what it would mean for a state court to rule one way and a federal court another and different rules applying in the same election in state and federal races on the same ballot.

Kavanaugh comes back to the Rehnquist concurrence in Bush v. Gore. He’s also talking about drawing lines between constitutional and statutory provisions.

Justice Barrett pushes further on the Rehnquist point. Katyal goes back to the sky high standard. Discussion of difference between statutes and constitutional provisions.

Don Verrilli is up as lawyer arguing for the state respondents (Katyal was for the voting rights groups). Justice Thomas returns to the Bush v. Gore concurrence and where the line is for federal court review of state supreme court rulings in federal elections.

This long format oral argument means that the Justices are mostly covering ground they’ve already covered. Soon I’ll post at the top my overall thoughts on the oral argument so far.

Justice Alito asks what could flunk Verrilli’s test. It’s a great question to get a concession. Verrilli pushes back on Alito’s argument that we should look to 1776 to see what kind of gerrymandering would be okay.

Verrilli emphasizes that Thompson has conceded for purposes of this argument that the state supreme court engaged in a fair interpretation of the state constitution.

Now SG Prelogar is up. Her view for the US is very much in line with the Common Cause and state Respondents. Lots of talk about the Bush v. Gore concurrence limiting principles.

Justice Alito asks the point raised in Derek Muller’s amicus brief: whether Congress has already authorized state courts to review state legislature plans for federal elections.

Thompson is now back up for rebuttal. Emphasizes they are only accepting what the NC Supreme Court did only for purposes of argument here.

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