Moore v. Harper: Law professors warn SCOTUS just set itself up to "meddle in future elections"

Big win for democracy leaves "just enough room for a bit of mischief in the future," law professor says

By Gabriella Ferrigine

Staff Writer

Published June 27, 2023 1:19PM (EDT)

US Supreme Court by Chief Justice John G. Roberts (PAUL J. RICHARDS/AFP via Getty Images)
US Supreme Court by Chief Justice John G. Roberts (PAUL J. RICHARDS/AFP via Getty Images)

The Supreme Court on Tuesday rejected a far-right legal theory that would have upended the federal election process — but legal scholars warn that the ruling leaves big questions for the 2024 election.

The court voted 6-3 in the Moore v. Harper case to reject the fringe "independent state legislature" theory, which would have given state legislatures the power to establish rules for federal elections and draw congressional maps "warped by partisan gerrymandering."

Conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented.

Chief Justice John Roberts wrote the majority opinion, stating that the Constitution "does not exempt state legislatures from the ordinary constraints imposed by state law."

The theory is founded upon a reading of the Constitution's Elections Clause — "The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof." This interpretation, according to advocates of the "independent state legislature" theory, means that no other bodies of government can change a legislature's actions on a federal election, The New York Times reported.

At the center of the case was a voting map drawn by the North Carolina Legislature initially struck down by the state's Supreme Court as a partisan gerrymander. The state court claimed that state legislature theory would be "repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences."

When the GOP attempted to reinstate the legislative map last year and asked SCOTUS to step in, justices rejected the request, and November elections were held under a map drawn by state-appointed experts. This ultimately yielded a delegation divided evenly between Republicans and Democrats. However, Republican lawmakers would appeal the Supreme Court, arguing that the North Carolina state court was not within its right to question the legislature. 

Following the fall elections, the North Carolina State Court flipped to favor Republicans 5 to 2, and the new majority gave discretion to the legislature to draw gerrymandered voting districts. 

But legal experts warned that the decision also sets up more litigation ahead of the 2024 election.

"The Court has provided some clarity about the independent state legislature issue: state constitutions continue to bind state [legislatures]. But it has also left a vague standard hanging over the 2024 elections," wrote New York University Law Prof. Rick Pildes.

"The Court recognized some, vague constraint on state courts going "too far" (my words) when they interpret state elections laws or the state [constitution]. But we don't even have a ruling on whether the NC court violated this standard.  The issue is going to be litigated in 2024," he explained on Twitter. 

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Fellow NYU Law Prof. Melissa Murray agreed that the ruling was "not a complete repudiation" of the independent state legislature theory.

"Court is really vague about what state courts can do in interpreting state constitutional provisions. We'll see more litigation in the future," she predicted.

While the ruling does not change any major law, wrote Georgia State Law Prof. Anthony Michael Kreis, it leaves "just enough room for a bit of mischief in the future to spare."

Rick Hasen, an election law expert at UCLA, explained that amid "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 even deciding the outcome of future presidential elections."

Roberts, Hasen wrote in a Slate op-ed, "got the liberal justices to sign onto 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."

As a result, federal courts and especially the Supreme Court will have great power to "second guess court rulings in the most sensitive of cases," Hasen warned

"But what Roberts left unresolved in his majority opinion is going to be hanging out there, a new tool to be used to rein in especially voter-protective rulings of state courts. Every expansion of voting rights in the context of federal litigation will now yield a potential second federal lawsuit with uncertain results," he added. "It's going to be ugly, and it could lead to another Supreme Court intervention in a presidential election sooner rather than later. Moore gave voters a win today, but it sets up a Supreme Court power grab down the line."

By Gabriella Ferrigine

Gabriella Ferrigine is a staff writer at Salon. Originally from the Jersey Shore, she moved to New York City in 2016 to attend Columbia University, where she received her B.A. in English and M.A. in American Studies. Formerly a staff writer at NowThis News, she has an M.A. in Magazine Journalism from NYU and was previously a news fellow at Salon.

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