In today’s Moore decision, Justices Thomas and Gorsuch rejected the majority approach to the independent state legislature theory, believing instead that state legislatures have almost plenary power and cannot be limited even by state courts applying state constitutions. (Justice Alito interestingly (given his earlier writings) did not join that part of Thomas’s dissent, agreeing only that the case is moot and should not have been decided). Justice Thomas and Gorsuch similarly took a different view in the Voting Rights Act case Allen from earlier this month. They take the position that Section 2 does not even apply to redistricting, so a state cannot violate Section 2 whenever it draws district lines.

It is important to see how these theories will inevitably lead Thomas and Gorsuch to side against voting rights litigants, albeit by a different path.

Consider first a challenge to a districting plan as violating Section 2. If, say, Roberts, Kavanaugh and Barrett do not believe that Louisiana has to draw another Black majority district because the Gingles factors were not met, Thomas and Alito would agree there is no violation (because they think Section 2 does not apply to redistricting): so 5 votes against finding a voting rights violation.

Similarly, taking the example from 2020 as described in my Slate piece: The Pa. Supreme Court extends the deadline for the receipt of absentee ballots because of the pandemic, relying on voting protections of the state constitution. If, say, Roberts, Kavanaugh and Barrett think that this state supreme court decision “transgresses” the rules of ordinary judicial review and usurps the power of the state legislature, then Thomas and Alito would concur in the judgment (because they believe that state courts cannot apply state constitutions to limit the rules of state legislatures). Again: five votes against voting rights litigant.

So I agree with Rick P. and disagree with Nick’s argument that “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.”

Don’t ever count on Thomas or Gorsuch to side with voting rights litigants in these cases.