Holy crap! A sensible decision from the United States Supreme Court on election law.

On June 27, in a case from North Carolina known as Moore v. Harper, the Supreme Court ruled that state legislatures do not have unlimited power to regulate federal elections. The Court said that state laws and regulations about federal elections, including congressional district maps, must comply with state constitutions and are subject to legal review by state courts. Additionally, state courts are themselves subject to review by the Supreme Court.

If you’re thinking, “Duh! Isn’t that how it’s supposed to work?” you would be correct.

Unfortunately, US democracy is in such a precarious state and the Supreme Court is so unhinged that it’s a huge relief when SCOTUS says something so blindingly obvious.

If you’re wondering why states would have any power at all over federal elections, well that’s a good question. The US Constitution give each state the power to decide how federal elections are run within their territory. Article 4, Section 1 of the US Constitution says:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

This is known as the Elections Clause.

As a result of the Elections Clause there is no uniform national standard for how US federal elections are run. In the State of Washington, where I live, everyone votes by mail. In most other states, voting is still done in person, but you can request a mail-in ballot … sometimes. There are different rules about registering to vote – what ID you have to provide, how far in advance of an election you have to register. The hours of operation of polling stations vary from state to state. In recent federal elections there have been lawsuits all over the country about ballot counting and voter rolls and many other issues.

Yes, this is absolutely ludicrous. But it’s right there in the Constitution.

What’s even more ludicrous is something called the Independent State Legislature (ISL) theory. Although calling it a “theory” gives the idea way more credit than it deserves.

Conservatives, specifically in this case, Republicans in North Carolina, seized on the words “by the Legislature thereof” in the Elections Clause and interpreted this to mean “by only the Legislature thereof, without regard for the state constitution and without any oversight by state courts.”

Under the ISL, a state legislature could gerrymander the hell out of congressional district boundaries – this is what actually happened in North Carolina – irrespective of what the state constitution says, and state courts would have no power to review the legislature’s action.

You can imagine the flood of voter suppression laws a state legislature could enact under the ISL.

Yes, it’s utterly bonkers and horrifically dangerous.

Melissa Murray, a law professor at New York University, said on an episode of the Strict Scrutiny podcast:  

“The independent state legislature theory is really just in fact Republican fan fiction. It’s not a legal theory at all. It’s not law. It’s not doctrine. It’s literally something that conservatives cooked up in a meth lab of anti-democratic grievance.”

Fortunately, the Supreme Court agreed, though in more nuanced language. Writing for a 6-to-3 majority of the Court, Chief Justice John Roberts said:

“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”

Now it’s not a complete victory for state courts. Roberts wrote that “state courts do not have free rein.” State courts can’t overstep the normal boundaries of judicial review. And Roberts is careful to reserve for the Supreme Court the power to review state court decisions. So this ruling won’t put an end to voter suppression or election lawsuits.

It’s alarming the Supreme Court even agreed to hear this case. That said, chalk it up as a small win for sanity and American democracy.

Related Links

Moore v. Harper
Full text of the Supreme Court’s June 27, 2023 decision.

Supreme Court rejects Independent State Legislature theory, but leaves door ajar
Report by Nina Totenberg on NPR, June 27, 2023

Supreme Court Rejects Theory That Would Have Transformed American Elections
Report by Adam Liptak in The New York Times, June 27, 2023

Supreme Court rules against North Carolina Republicans over election law theory
Report by Amy Howe on SCOTUSblog, June 27, 2023

The Supreme Court decides not to destroy democracy in the United States
Report by Ian Millhiser on Vox. June 27, 2023

Is ISL Dead? IDK.
Episode of the Strict Scrutiny podcast discussing the decision in Moore v. Harper, June 27, 2023

Vote Suppression
Information from The Brennan Center for Justice on vote suppression laws across the country