In one of the several notable decisions at the end of its 2022-23 Term, the Supreme Court last week in Moore v. Harper forcefully repudiated the essence of the so-called “Independent State Legislature”(ISL) theory—the notion that because the Elections Clause of Article I of the U.S. Constitution empowers (and imposes duties on) “legislatures” of the states, ordinary elected legislative representative bodies that routinely transact legislative business in state capitols throughout the country are free (or “independent”) to enact regulations of congressional elections without regard to any constraints imposed by their home state constitutions. (This theory, according to its proponents, would also, because Article II’s Electors Clause also mentions state “legislatures,” enable ordinary elected state legislatures to regulate presidential elections free from state constitutional constraints.) The Court, in a 6-2 decision (with Justice Samuel Alito taking no position on the merits) rejected this bizarre theory in no uncertain terms. Going forward, then, it ought to be clear that the Court has no tolerance for the ISLers’ claim that the “Elections Clause insulate[s] state legislatures from review by state courts for compliance with state law.”
Even as the Moore Court gave the lie to ISL, the majority did make clear, as no careful analyst would ever have denied, that state court rulings relating to federal elections, even state-court rulings rendered under state constitutions, technically raise federal questions that are subject to federal court review to ensure compliance with federal constitutional provisions. For this reason, the Court said that state courts “do not have free rein” in this realm, and suggested state courts would be subject to federal judicial oversight if they exceeded “ordinary judicial review.” This reservation of federal judicial power in Moore has caused some commentators to worry about the extent of federal court intermeddling going forward. While federal lawsuits will inevitably be filed, as I explain below and likely in more detail in later columns, I do not expect the reservation of federal judicial power to create too many real-world problems. But before we look down the road into where the Justices might/can go after Moore, let us first dwell on how much Moore itself reflects important (and for some cynical critics, unexpected) movement by many of the key members of the Court to get to where we are today.
Perhaps no member of the Court personifies the evolving and now perfectly clear high-Court rejection of ISL more than Chief Justice John Roberts. After all, he wrote an impassioned dissent in the Arizona Legislature v. Arizona Independent Redistricting Commission (AIRC) case in 2015 in which an ISL claim was rejected, arguing that there is a difference between a state’s (permissible) decision to supplement the work of the ordinary legislature in federal-election regulation and the state’s (impermissible) decision to supplant the work of the ordinary legislature altogether via the creation of an independent redistricting commission. By the time of Rucho v. Common Cause, four years later, he appeared to have abandoned this implausible distinction, and wrote an opinion for the Court that effectively blessed voter-created independent districting commissions, even as he declined to cite or rely on the result or analysis in AIRC. But last week, his opinion for the Court in Moore affirmatively and fully embraced AIRC’s result and reasoning. He acknowledged that, as a logical matter, AIRC followed from the result and rationale in the Smiley v. Holm case nearly a century earlier (involving the use of a governor’s veto in congressional districting legislation), and made clear that this reasoning “commands our continued respect today.” His recapitulation of the basic principle that AIRC lays down was clear and broad: “[A]lthough the Elections Clause expressly refers to the state ‘Legislature,’ it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power.” In other words, “Legislature” in this context means not a specific entity (the ordinary elected legislature) but whatever lawmaking system a state has chosen to use to make rules for federal elections. Under AIRC, he observed, states, “‘retain autonomy to establish their own governmental processes.’” And “whatever . . . entity [a state empowers to regulate congressional elections] remain[s] subject to constraints set forth in the state constitution.”
Not only did Chief Justice Roberts in Moore come fully around on AIRC and its rejection of the nub of ISL, in the process he unmistakably, if gently, moved away from what his predecessor Chief Justice William Rehnquist (for whom Roberts himself clerked) had written in a concurring opinion in Bush v. Gore. Chief Justice Roberts pointedly declined to adopt the Rehnquist standard for federal court review of state courts in this realm and, more fundamentally, Roberts rejected the premise of Rehnquist’s approach, which was that the Elections Clause is one of “a few exceptional cases in which the Constitution imposes a duty or confers a power on [and insulates from judicial review under the state Constitution] a particular” entity within a state’s government. In other words, Rehnquist had read “legislature” to mean a particular entity, not a lawmaking system, something that Smiley, AIRC and now John Roberts reject. Hooray for John Roberts.
Justice Brett Kavanaugh in Moore joined the majority opinion in full (even as he also wrote a concurring opinion), thus walking away from some pro-ISL things he had said in the context of the shadow docket in the runup to the 2020 election. Like Chief Justice Rehnquist, Kavanaugh seemed, albeit provisionally, to read legislature to mean a particular entity (the ordinary elected legislature) whose “clearly expressed intent . . . must prevail, [such that] . . . a state court cannot depart from the election code,” notwithstanding what that state’s constitution may provide. Moore, joined in full by Justice Kavanaugh, makes clear the ordinary legislature’s intent, no matter how clearly expressed, cannot override the state constitution. Hooray for Brett Kavanaugh.
Justice Barrett joined in full too, even though she (like Chief Justice Roberts and Justice Kavanaugh) had played a litigation role in Bush v. Gore on the Republican Party side. Hooray for her!
Justices Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan—esp. Justice Jackson—were all excellent at oral argument in the case and joined the majority opinion in full (and may have done even more behind the scenes). Hooray for them!
Justice Alito declined to opine on the merits, and thus declined to double down on troubling pro-ISL things he had previously said on the shadow docket. Good for him!
Justices Thomas and Gorsuch did not embrace the majority’s views (which align tightly with the views Akhil Amar and I have advanced in many pieces of scholarship and in an amicus brief joined by Steven Calabresi). Both Justices Thomas and Gorsuch had said strongly pro-ISL things long before the flood of recent scholarship and the filing of amicus briefs. Candidly, if one begins by seeing the duck, it is often hard to see the rabbit (and vice versa). (If you don’t know what that refers to, look it up.) But even these two Justices were forced to address (and ultimately chose to embrace) Smiley, (its predecessor Davis v. Hildebrandt) and AIRC. Given that Justice Thomas dissented in AIRC and now seems to embrace (or at least accept) it, this seems to be genuine progress. The Thomas/Gorsuch dissent was also careful in its tone and its bottom line. The dissent nowhere clearly stated that, on the merits, these two Justices would have reversed the North Carolina Supreme Court’s exercise of judicial review under the state constitution. And while these two Justices did not find the majority’s “merits reasoning persuasive,” they found the majority’s views on the merits to be of “far less consequence” than the majority’s views on the mootness of the case (a far cry from the importance of the ISL theory they had discussed in earlier shadow-docket writings). And, importantly, on the merits (consistent with its embrace/acceptance of AIRC), the dissent seemed to concede that the ordinary elected legislature can be divested of federal-election regulation power so long as the state constitution vests lawmaking power in another body as well, which, again, in essence repudiates ISL’s core claim that “legislature” means ordinary elected legislature and can mean nothing else.
So much for how we got here. Where do things go from here? As noted earlier, the Moore Court said that while “ordinary” judicial review by state courts poses no federal constitutional problems, state courts do not enjoy “free rein.” What are we to make of this reservation of federal judicial power to oversee state courts in this realm? A complete answer to this question may require additional essays, but a number of points are important to make right now:
- State-court oversight by the federal judiciary (and ultimately the Supreme Court) is limited to instances in which the state courts are exercising “judicial review” under their state constitutions. As noted earlier—and this is a crucial point—the majority opinion expressly recognizes that a state can vest federal-election regulatory power in entities other than the ordinary elected legislature. “Legislature” thus means “state lawmaking system in this realm,” and does not refer to any particular organ of state government. If a state wanted to confer lawmaking (rather than judicial) power in this area on its courts, there is nothing in the majority opinion in Moore that prevents such a delegation. Moore’s admonition that state court judicial review need be ordinary is limited to instances in which the state court has been given power to enforce the limits in the state constitution, but not been given lawmaking power in the federal-election realm. When state law assigns lawmaking power in federal elections to bodies other than courts, state courts must assure (and Article I requires) that such a decision be respected.
- “Ordinary judicial review,” it should be noted, is not limited to state court rulings that invalidate statutory enactments in the name of the state constitution—ordinary judicial review would also include interpretation of state statutes, via avoidance techniques and the like, in the light of, or against the backdrop of, the state constitution.
- Because of Moore’s fundamental rejection of the notion that “Legislature” in Article I refers to any entity in particular, those commentators who have characterized this latter part of Moore (reserving federal judicial oversight) as embracing a mild version of ISL are simply wrong. The residual federal court review of state courts in this realm has nothing to do with respecting the work-product of ordinary state legislatures per se, much less ordinary state legislatures that are “independent” from their state constitutions, which is the sum and substance of the ISL theory. Instead, now that ISL’s assertion of primacy or independence of the ordinary legislature under the Elections Clause is rejected, federal court review of state-court rulings affecting federal elections can have to do only with other federal constitutional provisions, and with preserving rule-of-law and due process and republican government norms—that state courts when they are empowered only to exercise judicial power must act like courts —that are implicit in the Elections Clause and in other parts of the Constitution. Making sure that state courts, in the federal election context, respect the outer boundaries of limitations that states place on such courts when courts are acting qua courts, is an important task, but it has nothing to do with protecting ordinary state legislatures in particular, and was a task that existed well before anyone had heard of ISL. One way of seeing this is to recognize that a state court could run afoul of the Elections Clause and other constitutional provisions by completely fabricating, by way of unprecedented methodologies, novel and unsupportable state constitutional rules concerning a federal election close in time to the election or after the fact, to override the work product of an independent redistricting commission; state courts do not have “free rein” to engage in such excesses in that situation, even though the ordinary legislature has already been completely removed from the redistricting picture.
- The writers of all the opinions in Moore effectively recognize that instances in which state courts exercise judicial review in a way that is not “ordinary” will be extremely rare. Justice Thomas’s dissent, in particular, points out that once state courts need not defer to the wishes of the ordinary legislature (and all judicial review involves override of those wishes), federal court review will necessarily be “forgiving,” especially in light of the fact that all constitutions (federal and state) mark, as a textual matter “only. . . the great outlines” of that which is allowed and prohibited. For this reason, an argument that many ISLers have often made—that state courts cannot invoke “vague” state constitutional provisions in the federal-election regulation arena—will (rightly) go nowhere now. (Imagine if the U.S. Supreme Court could not undertake “ordinary” judicial review simply because the constitutional provision in question were worded in grand or vague terms.) Justice Thomas also (rightly) intimates that methods of appropriate constitutional interpretation (including the weight given to stare decisis) vary by state, making federal court review necessarily more deferential. Justice Kavanaugh’s concurring opinion highlighted deference as well, and approved of the Solicitor General’s suggestion that state court rulings would have to be “truly aberrant” as a matter of state law to be problematic. Chief Justice Roberts, albeit a day after Moore and in a different opinion (Nebraska v. Biden) also drove home that judicial interpretations (informed by constitutional values) can be contentious and controversial without exceeding the judicial function: “We have employed the traditional tools of judicial decisionmaking . . . [and while] [r]easonable minds may disagree with our analysis—in fact, at least three do—[w]e do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.” For these very reasons, federal courts should tread very carefully before overturning state court rulings of state law on the ground that state courts have exceeded their judicial roles.
- At the end of the day, the “federal law” and “federal constitutional rights” and “federal constitutional provisions” whose enforcement Moore says requires federal court review of state court rulings in this arena are particular federal statutes and federal constitutional provisions relating to elections (such as the Voting Rights Act, the Fifteenth, Nineteenth, and Twenty-Sixth Amendments, etc.) that reflect particular concerns (often relating to equality), and due process/rule-of-law/ republican-government principles that prevent courts, acting as courts, from making things up in ways that upset settled expectations of voters. But, and here’s the key point, all of these federal provisions and values operate to constrain state courts when those courts issue rulings affecting state, and not just federal, elections. So in general a federal court should not be prepared to characterize a state court’s invocation of judicial review in a federal election setting as other than “ordinary” unless the federal court is prepared to do so for purposes of state elections as well. And that is a high bar indeed.