What the Moore v. Harper decision could mean
In July, we wrote about the potential dangers of the Independent State Legislature (ISL) theory that has been advanced on behalf of the North Carolina state legislature in the case Moore v. Harper. In short, if adopted by the U.S. Supreme Court, an extreme version of the ISL theory could hold that only state legislatures and the federal government have any say in how federal elections are run—potentially removing any role for state courts, administrative agencies, redistricting commissions, or reforms enacted by initiative. Considering that in 2022 alone eight jurisdictions across the country passed ranked choice voting initiatives–including one with the potential to affect federal elections–Moore v. Harper is an important case to follow for voting reform movements everywhere.
Yesterday, the U.S. Supreme Court heard the arguments in that case, and while nothing concrete will be known until the decision is published sometime in the first half of next year, some hints can be gleaned from yesterday’s two-hour proceeding.
First, it is clear that there are three groups of three justices on this case: Justices Thomas, Alito, and Gorsuch sounded to be firmly in support of some version of ISL theory, expressing skepticism in the power of state supreme courts and all having appeared sympathetic to the approach in previous decisions, as detailed in our July post. Justices Sotomayor, Kagan, and Jackon, on the other hand, all were clearly opposed to ISL, citing the need for checks and balances within state government and pointing to historical practice. The Justices in play, then, are Chief Justice Roberts and Justices Kavanaugh and Barrett, who are in some measure supportive of ISL theory but seemed to be searching for where reasonable limitations might be placed on the proposed doctrine.
Next, given that several justices were clearly looking for a middle ground, attention turned to the North Carolina state legislature’s proposed more modest approach. That is, petitioners argued that an alternative ruling would be to allow state supreme courts to retain the power of judicial review over state laws governing federal elections, but to limit state judicial power to “procedural” and not “substantive” constitutional provisions. Several justices spent a lot of time yesterday trying to figure out exactly what such a distinction would look like in various hypothetical scenarios, and ultimately seemed unpersuaded that such limitations are either constitutionally required or jurisprudentially workable. Later in the arguments, justices seemed more interested in creating a exceedingly high standard of review when the U.S. Supreme Courts can intervene in state courts interpreting state law. Nonetheless, it is unclear where Roberts, Kavanaugh, and Barrett will land in this case in their likely search for a convincing middle path approach between the status quo and completely removing judicial review powers from state supreme courts regarding state laws governing federal elections
Last, we gained little additional insight yesterday into how exactly this ruling may impact state agencies or reforms made pursuant to ballot initiatives, like ranked choice voting approved by ballot initiative. Petitioners, arguing on behalf of the North Carolina state legislature, focused exclusively on the role of state supreme courts. The petitioners proposed defining a “legislature” as the bodies constitutionally assigned to legislative functions: the legislature itself and the governor as a procedural participant via the power of the veto. If two of Roberts, Kavanaugh, or Barrett take up this definition in a majority opinion with Thomas, Alito, and Gorsuch, that could mean that no other state source of law would retain power to enact voting reforms for federal elections, such as redistricting commissions, state constitutional provisions, and ballot initiatives. Thought it is likely that any such opinion would be careful to not explicitly overrule recent precedent, such as the 2015 Arizona redistricting Supreme Court case which upheld the constitutionality of the use of a redistricting commission when redrawing congressional districts.
And so, while yesterday’s arguments suggested that three justices were searching for a more narrow victory for ISL theory, there remains a very real possibility that many existing state-level reforms regulating elections for federal office may be in danger of being challenged and held as unconstitutional. Of course, reforms affirmed by state legislatures, as ranked choice voting was in Maine in 2019, would remain valid. Nonetheless, Represent.Us recently released a report which listed over 200 state constitutional provisions and initiative-enacted reforms, such as Alaska’s top-four system, that soon could be challenged in the event of an adverse ruling in this case.
