Quick Thoughts on Moore

1. It’s striking how the entire Court accepts Arizona State Legislature and its holding that the Elections Clause doesn’t preclude independent redistricting commissions. Roberts spends two pages discussing the case without suggesting any criticisms (even though he authored a bitter dissent in Arizona State Legislature). Even more strikingly, Thomas relies on Arizona State Legislature‘s broad definition of “Legislature” as the “the lawmaking power as it exists under the State Constitution.” Given these moves, independent redistricting commissions seem quite safe going forward.

2. A potentially important line in Kavanaugh’s concurrence (quoting Rehnquist’s concurrence in Bush v. Gore) is that, “in reviewing state court interpretations of state law, ‘we necessarily must examine the law of the State as it existed prior to the action of the [state] court.'” This suggests that, to avoid skeptical federal court review (and potentially reversal), state courts should make major changes to their election law jurisprudence in cases involving state elections. If and when these changes are later applied in cases involving federal elections, the changes will no longer be new. Instead, they’ll be part of “the law of the State as it existed prior to the action of the state court.” And so they’ll be significantly more likely to survive federal court review.

3. The final pages of Thomas’s dissent (joined by Gorsuch) present criticisms of federal court review in this context with which the three left-of-center justices likely agree. “[I]t is difficult to imagine what this inquiry could mean in theory, let alone practice.” Federal courts “are not equipped to judge whether a state court’s partisan-gerrymandering determination surpassed ‘the bounds of ordinary judicial review.'” “[T]his framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts.” And so on. Given these criticisms, it should be difficult to find five votes for actually reversing any state court ruling under state law about federal elections. Thomas and Gorsuch would presumably oppose any such reversal. And so, probably, would the three left-of-center justices, at least in all but the most egregious circumstances. If that’s right, then the door opened by Moore may not be opened very wide. In almost all cases, it may mean that federal courts will uphold challenged state law decisions.

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