More caution at the Supreme Court

A fortnight ago we noted the decision of the United States Supreme Court in Allen v. Milligan, which, to the surprise of many observers, preserved a role for the Voting Rights Act in guaranteeing minority representation. This week comes another decision, Moore v. Harper, in which the majority on the court again steps back from the radical conclusion that right-wing Republicans had urged upon it.

For the background to the case, check out this post from about a year ago. Briefly, after the state Supreme Court had thrown out its plan to gerrymander congressional boundaries, the North Carolina legislature appealed to the US Supreme Court, arguing that state courts had no power to interfere with its decisions on federal electoral matters: the “independent state legislature” theory.

In the meantime, however, the Republicans picked up two seats on the state Supreme Court at last year’s election, and two months ago the new majority reversed the original decision. That gave the US Supreme Court an obvious opening to rule that the question was now moot and therefore avoid making a decision on the issue of principle. The independent state legislature theory would have survived as a live option, able to reappear at an inopportune moment – such as next year’s presidential election.

But the court declined to take that route. Six of the nine justices – chief justice John Roberts and conservatives Amy Barrett and Brett Kavanaugh, plus the three liberals – voted to hear the case and to dismiss the independent state legislature theory. Clarence Thomas dissented, arguing that the case was moot and that if it wasn’t, the theory should be upheld; Neil Gorsuch joined him on both points, and Samuel Alito on the first point only. (That’s the same breakdown as in Allen v. Milligan, except that Barrett has switched sides.)

The argument about whether the question should have been dismissed as moot is a highly technical one; I don’t pretend to understand all its nuances, although it certainly seems that Thomas has an arguable case. But I think it was worth stretching the court’s jurisdiction if need be in order to lay the independent state legislature theory to rest, rather than run the risk that Republican litigants would use it to wreak havoc next year.

The judgement doesn’t mean that federal courts have no role in overseeing what state courts might do in relation to federal election matters. The majority justices explicitly preserved a role for federal judicial review, saying that “state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures.” But they declined to offer any precise test for when such intervention might be warranted.

That worries some commentators. Richard Pildes, a leading expert in the field, argues that although the court rejected North Carolina’s extreme claim, it has left the door open to disruptive litigation:

by endorsing a weak version of the independent state legislature theory, the court has ensured that legal uncertainty on this remaining constitutional front might roil the 2024 elections — and it has opened a different, if less expansive, set of problems. No great feat of lawyering will be required to transform disputes in federal elections about the actions of state election officials or state courts into federal constitutional claims that assert those state actors have “gone too far” in their interpretation of state constitutions or state statutes.

But it’s not clear that the alternative is any better. While the general rule is that interpretation of state law is a matter for state courts, to apply that without exception to matters concerning federal elections would be to extend the (already extreme) balkanisation of the electoral process. And as the justices themselves point out, this role for the federal judiciary flows naturally from the 2000 case of Bush v. Gore – and there was never any prospect that a Republican court would repudiate that judgement.

Whatever the future problems, Moore v. Harper provides some consolation on two fronts: a bizarre legal theory has been consigned to the bin, and the swing voters on the Supreme Court have shown that they have not abandoned all concern for their judicial reputation.