(This is the first in a series of posts I plan to write about the implications of the last part of the majority opinion in Moore v. Harper that creates something of a time bomb for litigation.)

Expect many more lawsuits brought directly in federal court against the actions of state and local election officials following the Supreme Court’s Moore v. Harper decision.

Here’s the idea in a nutshell (and it crystallized for me after comments from Rick P. at our Safeguarding Democracy Project discussion today on the case):

The majority in the case (including the Court’s three liberals) said that state courts do not get “free rein” when they interpret state statutes or state constitutional provisions affecting federal elections. The key language is 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.” Put another way, when a state court engages in an interpretation that is a wild and wacky interpretation of its own state law (in the eyes of the Supreme Court or another federal court) as applied in a federal election, the state court has usurped the power of the Legislature under the Constitution. (This is the “weak” version of the “independent state legislature theory” adopted by the 6-Justice majority.)

This principle must apply to other state actors as well, including to state and local election administrators. To take a concrete example from the 2020 election: in light of covid and limited mail-in voting opportunities in Texas, Harris County, Texas adopted drive thru voting. It’s adoption was challenged in both state court and federal court. The claim in state court was that drive thru voting violated state law. The claim in federal court was an independent state legislature theory. By the time the federal court got to it, the Texas Legislature had changed the statute to make it clear that drive-thru voting was not allowed. A court majority decided the federal case was moot. But Judge Oldham, in a second opinion, found what he considered to be a clear violation of ISLT.

The Court’s decision in Moore v. Harper implicates just such a lawsuit. And unlike state court decisions, which (as Derek has shown) generally can’t be appealed to lower federal courts and must go to the U.S. Supreme Court, cases against election administrators can go to federal district court for a second chance at a favorable ruling. The question following Moore would appear to be whether the election administrator’s construction of the statute to allow drive-thru voting “transgressed[es] the ordinary bounds” of interpretation of state statutes (and I believe the state constitution as well, to which the election administrators will be bound).

These cases will lead to uncertain results. This will be ugly and increase litigation, and lead to lots of forum shopping for sympathetic federal judges.

This is yet another reason why the Moore case is not an unalloyed win for democracy or voting rights.