There’s a whole lot of spin out there about the Supreme Court’s 6-3 decision in Moore v. Harper concerning the scope of the “independent state legislature” theory. To hear some progressives tell it, the ISLT theory is dead and democracy is thriving. To hear it from Jason Snead, head of the Leonard Leo-backed (and Orwellian-named) “Honest Elections Project,” “The Left will cheer today’s ruling in Moore v. Harper, but this is no victory. For the first time, the Supreme Court has ruled definitively that there is a limit to the power of state courts to interpret election law.” Michael Dorf says liberals should just “take the W.”
Here’s my view on this (as described in somewhat different terms in this Slate piece and this blog post): Moore has killed off the most extreme version of the independent state legislature theory, but it still gives the Supreme Court and federal courts a license to do mischief (under uncertain standards) in the most politically sensitive cases including post-election challenges to presidential elections.
The reason the case looks like so much of a win has less to do with the Court’s holding than the Court’s rejection of a really extreme theory. In this way, it is much like the victory (that I wrote about recently in the New York Times) for voting rights plaintiffs in Allen v. Milligan. In Moore, the North Carolina legislators advanced a really bonkers theory that would have upended U.S. elections and provided a path for legislatures to engage in election subversion (as I argued in this amicus brief filed in Moore). In Allen, Alabama advanced a bonkers race-neutral theory of the Voting Rights Act that would have essentially killed it.
The three conservative Justices in the middle rejected these extreme arguments: we are conservatives but not suckers they seemed to say.
OK, great. The Voting Rights Act still lives and it will be hard for people like Trump to try to steal elections by saying that legislatures have free-standing power to do whatever they please, voting rights be damned.
But let’s not lose sight of how the goal posts have moved. As I explained in the Times piece and elsewhere, the goal posts have moved so much that keeping the status quo looks like a victory. But Section 2 of the VRA has already been hurt so much by cases like Abbott v. Perez and Brnovich. Preserving the status quo of Section 2 is much weaker than where Section 2 used to be. Voting rights do not get the protection that Congress wrote into the statute and intended.
And, as I explain in today’s Slate piece, we are going to have a ton of mischief coming out of the Moore decision. A TON of mischief from lower federal court judges that are going to bristle particularly when Democratic-appointed or elected state supreme court justices protect their voters’ rights under state constitutions or state statutes. And the Court is setting itself up to be the ultimate arbiter of the meaning of state law in the context of federal elections. The Court itself typically defers to state court interpretations of state law. But now, officially on the record in a majority opinion, the Supreme Court (and lower federal courts) get to make that call, overruling state law when it violates some amorphous standard of “transgressing” ordinary judicial review. Who knows that that means, in the context of the motivated reasoning that comes to judges when they deal with the most political of cases.
So yes, a victory against extremism but not a real victory. The “independent state legislature theory” is “dead?” If only.