I have written this piece for Slate. It begins:
It is indeed a cause for celebration that the United States Supreme Court, on a 6-3 vote in Moore v. Harper, rejected an extreme version of the “independent state legislature” theory that could have upended the conduct of elections around the country and paved the way for state legislatures to engage in election subversion. But after the celebration comes the inevitable hangover, and with all the hoopla it is easy to miss that the Supreme Court has now set itself up, with the assent of the liberal justices, to meddle in future elections, perhaps even deciding the outcome of future presidential elections (as it has done in the past). Chief Justice John Roberts drove a hard bargain….
But Moore is not all good news. In the last part of his majority opinion for the court, the chief justice got the liberal justices to sign onto a version of judicial review that is going to give the federal courts, and especially the Supreme Court itself, the last word in election disputes. The court held 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.”…
After the Florida court ordered the recount, Bush appealed to the U.S. Supreme Court. A majority held that the recount ordered by the Florida court violated the Equal Protection Clause because there was no guarantee that uniform standards were used or could be used to conduct it. But three justices—Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Thomas—adopted this milder version of the independent state legislature theory at the time. In essence they argued that the Florida court’s interpretation of the Florida election statutes to allow this recount was so far from ordinary statutory interpretation that the Florida court was essentially making up the law for itself, and taking away the legislature’s power to decide the rules for conducting federal elections in the first instance.
It is this milder version of the independent state legislature theory that the court embraced in Moore. It did not spell out its contours, and whether to adopt the Rehnquist Bush approach or some other approach. But Justice Kavanaugh, in a concurrence, endorsed the Rehnquist approach and said that in engaging in this second guessing, federal courts need to compare election law in the state in earlier decisions. The greater the deviation, the more likely to find a violation of the independent state legislature theory.
Make no mistake: this apparent new test would give great power to federal courts, and especially to the U.S. Supreme Court, to second guess state court rulings in the most sensitive of cases. It is going to allow for a second bite at the apple potentially in cases involving the outcome of presidential elections. In the 2020 presidential election, for example, Trump allies raised this theory in arguing that Pennsylvania’s Supreme Court could not extend the days for the receipt of absentee ballots by three days in light of the pandemic. There were not enough of these late arriving ballots to make a difference in 2020, but if there had been, according to the approach laid out in Kavanaugh’s concurrence, the U.S. Supreme Court would have had to look at Pennsylvania court precedents to decide if the state court went too far in deciding matters under its own state laws. It easily could have decided the outcome of the election based on its view of this question….
In the end, the liberals had to swallow a bitter pill without a word presumably to keep a majority with the conservative justices and reject the most extreme version of the theory. The writing was on the wall at oral argument, when attorneys defending voting rights in North Carolina had to concede there was to be some judicial review when a state supreme court goes completely nuts in purportedly applying election laws.
But what Roberts left unresolved in his majority opinion is going to be hanging out there, a new tool to be used to rein in especially voter-protective rulings of state courts. Every expansion of voting rights in the context of federal litigation will now yield a potential second federal lawsuit with uncertain results….