The following is a guest post from Mike Parsons, Senior Counsel at ERN and Principal at Parsons Law PLLC:

In this post, I offer some comments on what Moore v. Harper definitively resolved; why it’s time to move beyond the “independent state legislature” moniker; and how the future of the decision’s new “anti-arrogation principle” will depend on which of three paths the federal and state courts take next.

First, what Moore v. Harper definitively resolved and why it’s a major victory for the election reform community.

The press says the Independent State Legislature (ISL) theory is dead.  The scholars say a version of the ISL theory lives on.  While much of the commentary on Moore v. Harper has focused on the ISL theory’s vital signs, we should pause to recognize that Moore v. Harper contained several clear holdings that answered key questions of great importance.

As Election Reformers Network noted in its press release on Moore, the case definitively confirms the ability of state constitutional provisions to bind state legislatures, reaffirms the constitutionality of Independent Redistricting Commissions (or other state allocations of lawmaking power pertaining to federal elections), and protects the power of voters to regulate federal elections through the ballot measure/initiative process (where provided by state law).  All of these were in question leading up to the decision in Moore (especially given Chief Justice Roberts’ dissent in Ariz. Independent Redistricting Commission), and all are now resolved in a way that clearly preserves a path forward for democracy reformers.  That’s an important win worth celebrating.

Second, why it’s time to inter the “ISL theory” – and begin evaluating the “anti-arrogation principle.”

As far as what lingering questions remain, Part V of the majority opinion did articulate something.  And I propose it be referred to as the “anti-arrogation principle.”   

Why “principle”?  Because it is no longer a “theory,” but it is not yet a “doctrine” (as Justice Kavanaugh’s concurrence points out).

And while many scholars discussed the varying flavors of ISLT leading up to the decision, the majority opinion definitively rejected the concept that a “state legislature” might be, well, “independent” of traditional state constitutional constraints.  So much for “ISL.”  To be sure, some version of the argument that “the federal Elections Clause puts special limits on non-legislative state actors” lives on after Moore.  But that surviving principle deserves a more descriptive name than “ISLT-Lite.”  (And “the Thanksgiving-leftovers-of-Chief-Justice-Rehnquist’s-theory-in-Bush-v.-Gore” is too long.)

Why “anti-arrogation”?  Because while the first half of the Moore holding (“state courts may not transgress the ordinary bounds of judicial review”) has received the most attention thus far, the animating and defining principle is in the second half of the holding (“such that [the courts] arrogate to themselves the power vested in state legislatures to regulate federal elections”). 

The impact of the principle will depend on how it ends up being applied in individual cases – and centering the latter half of the holding may well impact how the former develops in practice. 

Third, how the future of the anti-arrogation principle will depend on which of three paths the federal and state courts take next.

Three predictions about the future of the principle appear to be emerging:

Path 1: Federal courts will be highly deferential. 

As Cameron Kistler at Protect Democracy notes, the existing power to police state court interpretations under the Due Process Clause has been rarely used – and the majority’s invocation of the Contracts Clause and Takings Clause jurisprudence suggests a similarly high bar for federal court intervention.  This means that the anti-arrogation principle – if applied in a similar manner – might only come into play to in response to truly arbitrary or outrageous state court interpretations and interventions. 

One benefit of this approach in practice would be that it should minimize the risk of a delta emerging between how any given state law might be interpreted to apply by state courts to state elections and by federal courts to federal elections.  Applying the principle in this manner would also reduce the risk that the principle comes to be used (or seen) as a partisan cudgel, only wielded by the Supreme Court’s conservative majority and inaccessible to the Supreme Court’s liberal minority.

Path 2: Federal courts will intrude when they disagree on the merits.

The chief risk is that the principle will be applied whenever any group of five Justices disagree with the merits of the state court decision and are therefore tempted to say the state court “transgressed the ordinary bounds of judicial review” by ruling differently than those five Justices would have ruled.  Justice Kagan’s comments during oral argument capture the risk here well:

“Your colloquy with Justice Alito made me feel uneasy . . . And I think that the reason is because it shows how very good judges on very good courts can find it incredibly easy to disagree with each other. . . . I think that every single one of us on this bench has written opinions at times saying that other judges, whether it’s other judges on this Court or lower court judges, have engaged in policymaking rather than in law. It’s just sort of one of the things that judges say when they really disagree with another opinion. . . . How is this [doctrine] going to be a check that’s used rarely rather than whenever you . . . disagree strongly?”

The facts of Moore v. Harper put a fine point on the problem.  That the 6-3 majority didn’t say whether the original state court decision at issue violated the anti-arrogation principle by reading an anti-gerrymandering rule into the North Carolina state constitution is telling.  This should’ve been an easy case to apply the new principle.

After all, before the Supreme Court ruled in Rucho v. Common Cause that partisan gerrymanders are nonjusticiable, the same Court held – twice – that partisan gerrymanders are justiciable (Bandemer and Cromartie I).  And the Court unanimously stated that partisan gerrymanders can violate the U.S. Constitution (Vieth) and cause a constitutional harm sufficient to create standing (Gill).  To be sure, a narrow 5-4 majority eventually gave up on attempting to adjudicate partisan gerrymandering claims, but it is difficult to say that a half-century of Justices “transgressed the ordinary bounds of judicial review” by reading the Equal Protection Clause (or First Amendment) to support such a claim. 

Perhaps one might argue that these past precedents should not be entitled to weight because the Court only articulated a principle about partisan gerrymandering claims.  And it failed to articulate a standard or doctrine for adjudicating such claims. 

But Moore v. Harper bears the same inauspicious start.  As Justice Kavanaugh observes, “[T]he Court has recognized and articulated a general principle for federal court review of state court decisions in federal election cases.  In the future, the Court should and presumably will distill that general principle into a more specific standard…” 

As partisan gerrymandering challenges under state constitutions continue to bubble up to the U.S. Supreme Court, we should soon get a sense of whether Justice Kagan’s concerns might be realized – or whether the principle will be reserved for the rare, genuine threat of “arrogation.”

Path 3: Self-policing and (mutual?) avoidance. 

Ned Foley suggests state courts might take the hint and pull their punches to avoid being overruled under the anti-arrogation principle.  This raises a couple interesting points:

First, Foley’s example raises the question of what falls within the meaning of the word “ordinary.”  Are the “ordinary bounds” of judicial review defined by what’s supposedly outrageous under a particular judicial method (such as textualism) or are they defined by what’s atypical or unexpected? 

For example, Foley points to the example of a state court extending an absentee-ballot-return deadline.  To be sure, this involves a state court overriding an explicit date set out in state law.  But does such a decision “transgress the ordinary bounds of judicial review”?  Is strict textualism necessarily required if that is not the state court’s primary mode?  If the status quo in a state is that statutory deadlines in the canvassing and certification calendar have long been understood by all state actors to be “default” deadlines that are regularly subject to judicial remedial modification when and as needed to account for unforeseen events, then is the judicial action actually “out of the ordinary”?  And what counts, in Kavanaugh’s formulation, as “the law of the State as it existed prior to the action of the [state] court”?  Does it include typical past practice in the state?

Second, might both the state and federal courts engage in mutual avoidance – and end up walking backwards into a “remedial version” of the anti-arrogation principle?

In a later dialogue between Carolyn Shapiro and Ned Foley, Foley raises the prospect that where an explicit statutory provision violates a state constitutional command, the state court might be able to enforce its substantive interpretation of state law but avoid federal court intervention under the anti-arrogation principle by giving the state legislature a chance to remedy the constitutional violation itself.  Rick Pildes raised the possibility of the Court adopting a similar theory in his July 2022 testimony before the House Committee on Administration. 

This would, in effect, use the Elections Clause to constitutionalize something like the Lipscomb principle as applied to state courts for federal election remedies – or perhaps extend a branch of the political question doctrine down to state courts. 

Here, the “anti-arrogation” focus of Moore’s holding seems exceptionally relevant.  After all, if a court strikes down a map as unconstitutional but then gives the state legislature the first bite at the apple for redrawing, there would seem to be quite little risk that the judicial action threatens to “arrogate to itself” the legislature’s power under the Elections Clause.

With this approach, the state court could protect its own interpretive prerogatives while giving the federal courts an offramp to avoid the need to explain why, when, and how a state court’s substantive reading of law “transgresses the ordinary bounds of judicial review.”  (This, too, could help reduce the odds that election officials end up having to apply one state rule in two different ways to two different sets of jointly administered elections based on dueling federal and state interpretations of state law.)

So where do we go from here?

Unfortunately, all of this appears to be a recipe for ambiguity, confusion, and more eleventh-hour litigation at a time when we need more clarity.  The lack of guidance will invite the losing party of state judicial (or state executive) decisions to file claims.  Any ambiguities over how the principle will apply to state executive action will encourage forum shopping.  And the Supreme Court’s increasingly aggressive use of stays on the shadow docket could lead to premature interventions that substantially alter the status quo, regardless of how the principle is eventually applied (as the adverse stay – and eventual favorable outcome – in the Merrill case demonstrated in spades).

The only way the Supreme Court can avoid this unnecessary collateral damage is to demonstrate early and often through its application of the anti-arrogation principle that the doctrine will be overwhelmingly deferential to state courts (or, at the very least, state court interpretations). 

Moore v. Harper may have been decided by a six-Justice majority spanning the ideological spectrum.  But whether that coalition can hold together when the rubber meets the road will depend on which path(s) federal courts and state courts alike take in applying the anti-arrogation principle.