As I have explained, although the Supreme Court in Moore v. Harper rejected the most extreme version of the independent state legislature theory, it endorsed another theory that amounts to a “time bomb:”
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, which 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 to even decide 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 on to 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.”
I wanted to expand more on why the liberal Justices may have signed onto this part of the majority opinion in Moore (It is Section V) rather than concurring in part and dissenting in part. (And I think this explanation may explain something about the coalitions in Bush v. Gore, the 2000 case ending the presidential election dispute over Florida’s electoral college votes.) But first a detour about . . . ice cream.
Imagine that there are three people deciding together which pint of ice cream to buy at the supermarket. Here are the three people and their preferences:
Alice: Vanilla > Chocolate > Strawberry
Brian: Chocolate > Strawberry > Vanilla
Carlos: Strawberry > Vanilla > Chocolate
If they each vote for their favorite, it’s a three way tie. So suppose the vote first is on vanilla v. chocolate. Vanilla wins. Then vanilla is put up against strawberry, and strawberry wins. Then strawberry against chocolate, and chocolate wins. This is a voting cycle that comes under Arrow’s impossibility theorem. There needs to be some way to break the cycle.
Consider what would happen if I’m right about the preferences of the Justices below:
Roberts/Kavanaugh/Barrett: Weak ISLT > Strong ISLT > No ISLT
Thomas/Alito/Gorsuch: Strong ISLT > No ISLT > Weak ISLT
Kagan/Sotomayor/Jackson: No ISLT > Weak ISLT > Strong ISLT
If the liberals just allow the two conservative coalitions to vote, we end up with Strong ISLT (because both prefer Strong ISLT to No ISLT), the last choice of the liberals. But if the liberals vote for weak ISLT, then they can peel the Roberts group away. This is what I mean when I talk about Roberts driving a hard bargain. This is how the liberals could get out of the cycle.
(For those who think I’m wrong and the Thomas group would prefer Weak ISLT to No ISLT, read Thomas’s dissent going hard after Weak ISLT).
Similar logic explains why the conservative group of Rehnquist, Scalia, and Thomas in Bush v. Gore not only adopted the weak version of ISLT but ALSO concurred in the equal protection rationale in the per curiam opinion (authored, we now know, by Justice Kennedy). Scalia later said the equal protection rationale is, “as we say in Brooklyn, a piece of shit.”
If the Rehnquist group voted sincerely rather than strategically, there would be a majority of Justices rejecting the equal protection rationale (the Rehnquist group and the four liberals) and a majority of Justices rejecting the weak ISLT rationale (Kennedy, O’Connor, and the four liberals). Bush would still win even though a majority of Justices rejected both theories on which he won. That was intolerable for such a politically sensitive case.