exhibit a

Apocalypse Averted

The Supreme Court rejects an absurd conservative legal theory that could have dramatically changed how elections are conducted.


On Tuesday, the Supreme Court did a good thing. In a 6-3 ruling written by Chief Justice John Roberts in Moore v. Harper, the Court rejected the most extreme version of a fringe legal theory advanced by conservatives that would have thrown federal elections throughout the country into chaos, subjecting them to rank political manipulation by state lawmakers above and beyond the already regrettable status quo. The ruling was widely expected after oral arguments in the case in December, but it is still a welcome step back from the brink.

The case concerned a new legislative-district map created by the North Carolina state legislature following the 2020 census that would have further advantaged Republicans. The Court’s decision on Tuesday, however, did not address the underlying merits of the redistricting. The opinion was instead a referendum on the “independent state legislature” theory, which essentially posits that state legislatures have exclusive and unreviewable authority — preventing judicial review even by their own state courts — to determine how federal elections are handled. In its strongest form, the theory encompasses not just legislative redistricting but state laws governing how federal elections are handled in the states — including for president and Congress.

The convoluted, politically inflected path that Moore traveled to the Supreme Court was itself a sign of the stakes of the dispute. The state trial court initially concluded that the newly drawn map was “a partisan outlier intentionally and carefully designed to maximize Republican advantage in North Carolina’s Congressional delegation” but held that the court did not have power to throw out the map. On appeal, the North Carolina Supreme Court held that the Republican-drawn map violated the state’s constitution, but last year, Republicans retook control of the state’s top court and reversed the prior ruling. The two Democrats on the court dissented, writing that the earlier ruling had been “vacated by a Republican-controlled Court seeking to ensure that extreme partisan gerrymanders favoring Republicans are established.”

The independent state legislature theory has its nominal basis in the Elections Clause of the U.S. Constitution, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators.”

The provision says nothing on its face about closing the door to judicial review, but in a 2019 decision, a conservative majority on the Supreme Court held that claims of partisan gerrymandering — like those at issue in Tuesday’s case — could not be heard by federal courts because of their political nature. That ruling raised the stakes for the outcome in Moore, which could have prevented even state courts from reviewing cases involving partisan gerrymanders.

Roberts’s opinion for the majority — which was joined by all three liberal justices along with conservatives Brett Kavanaugh and Amy Coney Barrett — decisively rejected the most aggressive version of the theory. “The Elections Clause,” they wrote, “does not insulate state legislatures from the ordinary exercise of state judicial review.”

In reaching this conclusion, they drew on the historical record surrounding the Constitutional Convention, when even “[t]he Framers recognized state decisions exercising judicial review.” The majority rejected the position advanced by North Carolina’s legislature and the three dissenting conservative justices, who argued that only constraints imposed by the federal constitution — as opposed to state laws and court opinions — could be imposed in such cases. “This argument simply ignores” Supreme Court precedent, the majority wrote, and “also does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life.”

The majority’s opinion is both narrow and technical, so it fell to Kavanaugh to offer some useful clarity about the scope and implications of the ruling in a concurring opinion. He summarized the two key points in the majority’s ruling: (1) “state laws governing federal elections are subject to ordinary state court review,” and (2) “a state court’s interpretation of state law in a case implicating the Elections Clause is in turn subject to federal court review.”

But the big outstanding question, as Kavanaugh correctly noted, is what federal standard of review should actually apply to “a state court’s interpretation of state law in a case implicating the Elections Clause.” He argued that a federal court’s “review of a state court’s interpretation of state law in a federal election case should be deferential, but deference is not abdication.”

Exactly how deferential the standard should be will now likely be the next front in this battle, at least in federal courts, but there is reason to worry that conservative federal judges — including those on the Supreme Court itself — could use this authority in the future to narrow or reverse voter-friendly rulings by state courts, potentially even tilting the outcomes in presidential elections.

For now, the Court’s ruling is a welcome repudiation of an absurdly broad and legally baseless theory. If the Court had sided with North Carolina’s lawmakers, the implications could have been far-reaching — effectively providing state legislatures with carte blanche to do whatever they want in the way of redistricting and passing voting laws. In addition to state courts, other state bodies, including governors and redistricting commissions, could have lost their legal authority to weigh in on partisan gerrymanders. Republican-controlled state legislatures throughout the country would have had an even easier time passing laws that disenfranchise voters — including laws, in the extreme, that might have allowed lawmakers to subvert the will of voters in order to ensure state-level Republican victories in presidential and congressional elections, as was suggested by Donald Trump’s minions after he lost the 2020 election.

The protections for voters in these settings are already not strong enough. But on Tuesday, at least, the Supreme Court held the line.

Supreme Court Rejects Lunatic Legal Theory of Elections