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(Photo by Alex Wong/Getty Images)
The independent state legislature theory landed with a thud at oral argument. After years of hyping up the idea that the Constitution elevates state legislatures over state courts, conservatives realized that even this 6-justice supermajority couldn’t midwife this turkey. North Carolina’s Supreme Court later reversed its own decision in a bid to get the U.S. Supreme Court to punt the case as moot and let the independent state legislature theory live to fight another day. The Court decided to go for it on fourth down instead and converted the “ISL” to a has-been legal theory.
In Moore v. Harper, Chief Justice John Roberts continued his streak of “good” voting rights opinions. He’s making Alabama draw another majority-minority district. Louisiana is going to need another one too. Now this? Has the author of Shelby County turned over a new leaf after gutting the Voting Rights Act?
Slow down.
The crux of the independent state legislature theory is that state legislatures and only state legislatures decide how a state runs federal elections. Since states have a lot of latitude when it comes to election law — and Roberts had already taken a lot of the bite out of federal oversight in Shelby County — this theory could elevate more conservative state legislatures to get around moderate or liberal governors and state courts. This could cause a good deal of mischief if, say, a GOP legislature decided to award a state’s Electors to Trump regardless of how the state’s voters came out.
So this is the theory that John Roberts brought Kavanaugh and Barrett along with him to reject. That doesn’t really require voting rights heroism as much as common sense.
As I wrote after the oral argument:
Make no mistake, Chief Justice Roberts is on record buying into a watered down version of this theory and will, after today’s battering, probably cobble something together that shields Republican legislatures without straining the outer bounds of basic notions of constitutional governance.
That’s more or less how this turned out. The majority opinion kills the idea that state legislatures can override state constitutions, but sneaks in a role for the federal courts to protect state legislatures from state courts applying state law in ways that federal courts don’t like.
State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution. Because we need not decide whether that occurred in today’s case, the judgment of the North Carolina Supreme Court is affirmed.
As a functional matter, Roberts replaced the independent state legislature theory with an independent federal judiciary theory — one where the U.S. Supreme Court can commandeer state law at will.
If that sounds to you like a blast from the Supreme Court’s past… you’re not wrong! As Professor Rick Hasen puts it:
BUT, the Court held that the independent state legislature theory gives the U.S. Supreme Court (and perhaps other federal courts) the ability to second guess determinations of a state court interpreting a state statute in a federal election. So when a state court adopts a truly wacky interpretation of a state statute, the Supreme Court (or perhaps other federal courts) can reject that interpretation as “transgressing the ordinary boundaries of judicial review.” This was what the Chief Justice Rehnquist concurrence in Bush v. Gore said that the Florida Supreme Court did in interpreting Florida law.
Kavanaugh even used a concurrence to explicitly defend this opinion as a codification of Bush v. Gore.
In other words, the opinion stands for the principle that state legislatures don’t decide election law… John Roberts decides election law. John Roberts spent years fighting the Voting Rights Act as an advocate. The common thread of his recent election cases isn’t a rejection of decades of personal animosity toward voting rights, as much as an acknowledgment that there’s no need to ban this gun now that his finger is on the trigger. Why strike down an avenue for the Court to ultimately determine who does and does not get to vote, when Roberts can muster a majority to serve as the sole arbiter of the right to a meaningful vote.
If he wants to approve a gerrymander, he can swing his colleagues to join Thomas, Alito, and Gorsuch. If he wants to strike one down, he can forge a compromise with Sotomayor, Kagan, and Jackson.
He decides now.
Earlier: Justice Ketanji Brown Jackson Asks Simplest, Most Damning Question As Supreme Court Entertains Canceling Democratic Elections
John Roberts Decides Voting Rights Already Weak Enough For Him In Latest Supreme Court Ruling
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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