Decides not to destroy democracy

The Supreme Court decides not to destroy democracy in the United States

Six justices decided not to burn the right of the people to govern themselves to the ground.

By Ian Millhiser

On Tuesday, the Supreme Court rejected an utterly deranged lawsuit that threatened the foundational American principle that governments derive “their just powers from the consent of the governed.”

Moore v. Harper was the gravest threat to free and fair elections in the United States to arrive at the Court in decades. And, while Tuesday’s 6-3 decision leaves the door slightly ajar should a future Court wish to overturn a close election, it rejects more sweeping theories that could have rendered many American elections meaningless.

It is also the Court’s second decision defending the foundations of US democracy this month — a reassuring and slightly surprising turn after some of its decisions regarding voting rights and elections in the last few years.

Moore involved the awkwardly named “independent state legislature doctrine” (ISLD), a theory that the Supreme Court rejected many times over the course of more than a century. Yet this theory also started to gain steam as former President Donald Trump filled three seats on the Court with staunch conservatives.

The ISLD takes two lines from the Constitution concerning election administration and misleadingly argues that they mean a state’s legislative branch of government has effectively unchecked authority to decide how congressional and presidential elections will be conducted in their state.

Under the strongest version of the ISLD, any state constitutional provisions that protect the right to vote, that limit gerrymandering, or that otherwise constrain lawmakers’ ability to skew elections would cease to function. State governors would lose their ability to veto laws impacting federal elections. And state courts would lose their authority to strike down these laws.

No justice signed on to this extreme version of this quizzical legal theory — even Justice Clarence Thomas’s dissenting opinion conceded, for example, that a state governor may veto an election bill. But two justices — Thomas and Neil Gorsuch — did sign on to a slightly weaker version of the ISLD which would render state constitutional provisions that protect voting rights, or that safeguard against gerrymandering, unenforceable.

Two justices, however, do not make a majority. And a total of six justices — Chief Justice John Roberts, Justices Brett Kavanaugh and Amy Coney Barrett, and the three liberals — all signed onto an opinion by Roberts that rejects the ISLD almost in its entirety. (The ninth justice, Samuel Alito, would have dismissed the case for lack of jurisdiction.) That means that US elections will continue as they always have.

Though this relatively moderate outcome seemed possible after oral arguments last December, US democracy is in a way better shape after Moore than many Court watchers (myself included) expected after the justices first agreed to hear this case.

There is, however, one important caveat.

The caveat is that Roberts’s opinion does include a vague section which concludes that federal courts may get involved if a state supreme court “transgress[es] the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Roberts’s opinion explicitly refuses to lay out clear rules explaining when such a transgression has occurred, so a future Supreme Court might rely on this language in Moore to overrule a state supreme court’s decision that sought to settle a federal election.

Realistically, however, this final part of the Moore opinion does not change the status quo. In Bush v. Gore (2000), a GOP-controlled Supreme Court overruled a decision by the Florida Supreme Court that favored Democratic presidential candidate Al Gore. The Court’s reasoning in Bush was widely mocked, and even the Court itself wasn’t willing to stand by it — holding that its decision is “limited to the present circumstances” and therefore should not be relied on by future courts.

For the last 23 years, in other words, we have known that if an election is sufficiently close, the Supreme Court may intervene based on vague and uncertain legal principles — and potentially in ways that benefit the political party that most of the justices belong to. Moore makes explicit what has been implicit since Bush. But it otherwise leaves the rules governing federal elections unchanged.

The independent state legislature doctrine — and its flaws — briefly explained

The ISLD arises from two provisions of the Constitution, both of which give a state “legislature” authority over federal elections in that state. One provision states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” Another provision says that presidential elections shall also be conducted in a way determined by the state “Legislature.”

The case for the ISLD, in other words, is deceptively simple: The Constitution says that the rules governing federal elections shall be made by each state’s “legislature” — and a governor, a state supreme court, or a state constitution is not the “legislature.”

But even a brief dive into the Constitution’s history or the Supreme Court’s precedents reveals that this theory is bunk. At the time when the Constitution was debated and ratified, popularly elected legislative bodies like the US Congress were a fairly new innovation, and the word “legislature” was not understood to mean “the elected body of men and women who make up the House and Senate.”

Rather, it meant, as the Court held in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) “the power that makes laws.” This power to make laws may be vested in an elected legislative body, in an elected legislature that is subject to a governor’s veto, or even in the people themselves — who may exercise legislative power through a ballot initiative or referendum.

The principle that state courts may enforce their own state’s constitution against the state legislature, moreover, flows from the same reasoning that animated the Supreme Court’s decision in Marbury v. Madison (1803), the seminal case establishing that federal courts may strike down laws that violate the US Constitution. Roberts cites Marbury for the proposition that “it is emphatically the province and duty of the judicial department to say what the law is.”

And just as it is the duty of federal courts to say what the federal Constitution requires and to strike down laws that run counter to it, it is also the duty of state courts to enforce their state’s constitution. As Roberts writes, the US Constitution “does not insulate state legislatures from the ordinary exercise of state judicial review.”

This principle also flows from a long line of Supreme Court cases that reject the ISLD, and Roberts’s opinion relies on a string of them — including the Arizona State Legislature decision and Ohio ex rel. Davis v. Hildebrant (1916), a decision from more than a century ago establishing that a state election law may be subject to a popular referendum.

Indeed, the ISLD has been litigated so many times — and rejected so many times — in the Supreme Court that it’s baffling that the Moore case needed to be heard in the first place. Nevertheless, four current members of the Supreme Court have embraced it in the recent past. So, when Moore reached the justices, there seemed to be a real risk that the Court would light US democracy on fire.

Nevertheless, the fact that Roberts, Kavanaugh, and Barrett all rejected arguments that would have allowed state lawmakers to rig federal elections is a hopeful sign that the American people, and not the nine justices, will decide who is elected to govern the United States.

Moore reaffirms Bush v. Gore

All of this said, there is one small section of the Moore opinion that could cause considerable chaos in a future close election.

After spending about two dozen pages laying out the case against the ISLD, Roberts concludes his opinion with a warning 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.” He offers no analysis of just how poorly a state court might need to behave in order to “exceed the bounds of ordinary judicial review,” but future litigants will no doubt cite this language to justify asking federal courts to overrule state election decisions that they do not like.

But we’ve also seen this movie before. In Bush v. Gore, many Republicans believed that the Florida Supreme Court wrongly interpreted state election law to benefit the Democratic candidate. One of these Republicans was then-Chief Justice William Rehnquist, who wrote a concurring opinion in Bush which claimed that the state supreme court “impermissibly distorted” state election law “beyond what a fair reading required.”

Indeed, Rehnquist argued that the ISLD should have been invoked in Bush to undo the state supreme court’s actions.

Roberts’s Moore opinion cites favorably to Rehnquist’s approach in Bush, explaining that Rehnquist “acknowledged the usual deference we afford state court interpretations of state law, but noted ‘areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.’”

In any event, Bush involved an unusually close election — the initial tallies showed Bush up just 1,784 votes in the state of Florida, and the entire election turned on whether Florida went to Bush or Gore. We know from Bush that, in an election that was that close, the Supreme Court effectively intervened to choose the winner of that election. And we know that the Supreme Court’s Republican majority chose a legal approach that would benefit the Republican candidate.

That said, The Supreme Court did not intervene in the 2020 election, despite the fact that Republicans had a supermajority on the Supreme Court at that point and despite the fact that Republican candidate Donald Trump repeatedly urged them to do so. That election was not nearly as close as the 2000 election. And the Court would have needed to change the result in at least three states to install Trump as president.

We know from Bush, in other words, that the Court may intervene in extremely close elections, that they may do so based on highly dubious legal reasoning, and that they may intervene to benefit the same party that controls the Supreme Court. But we also know from 2020 that this Court will not intervene when the Democratic candidate wins decisively in the Electoral College.

Realistically, Moore’s language about abandoning the “usual deference” afforded to state supreme courts is unlikely to disturb this status quo.