They're baaaccckkk! This time each year, the Supremes reunite to entertain and amaze. I don't mean the Supremes of Diana, Mary and Flo; I mean the Supremes of Clarence, Sam, and Amy, with Neil and Brett singing backup, and with John pretending he's in charge of the group. The Constitution mandates that on the first Monday of October, the Supreme (Kangaroo) Court or the Kangaroo Supreme Court - I don't want to offend any Kangaroos - begin continuing the process begun last year that stripped the liberty rights from over half our population; made communities safe for guns, their manufacturers and their owners; in the name of religious liberty drove another nail in the coffin of public education; and curtailed an administrative process before it even ripened. And that's the very short list. This year promises more mayhem and hijinks. On the Court's docket are issues relating to voting (one from North Carolina and another from Alabama), two issues pitting gay and religious liberty interests (one involving a bakery in Colorado and the other involving Yeshiva University), and one involving race-based admissions policies (at Harvard). And that, too, is the short list. Remember when Clarence Thomas, the guy who doesn't speak to his wife about ... things, wrote in his concurrence in Dobbs that other "substantive due process" rights could be reviewed? Well pull up a chair, get comfy, have some popcorn and watch how this all begins to play out. At this point it might be wise to remember the words of M.J. from the recent Spiderman movie, "when you expect to be disappointed, you'll never be disappointed." The wisdom of Zendaya, err, M.J. I fully expect to be disappointed, so much so that when Clarence, Sam, Amy, Neil, Brett and John are through, they'll make Federal District Court Judge Aileen Cannon look like Ruth Bader Ginsburg by comparison. The case that has me most worried is a redistricting matter from the State of North Carolina, Moore v. Harper, Docket Number 21-1271. It seems that as a result of the Constitutionally mandated decennial census, the North Carolina state legislature, controlled by one political party (which will remain nameless because it's so obvious which one) set about its redistricting duties. Using the census results as cover, the legislature sought to ensure more of it's members of the nameless party had a better than even shot at getting elected to the federal House of Representatives. As it turns, due to population changes, the census result gave North Carolina one additional congressional seat. Clearly the state legislature's minority party appealed the new redistricted map, which appeal was denied by a state superior court. But upon appeal to the State Supreme Court, that Court held that the districts as drawn constituted partisan gerrymandering in violation of state constitution, and directed the legislature to do better. The legislature, instead of doing its job to protect the voting rights and liberty interests of the people they swore to serve, appealed to the United States Supreme Court. The legislature had to feel more than pretty good about its appeal to the high Court. Only three years earlier, in the case Rucho v. Common Cause, the Court held that partisan gerrymandering cases are no longer justiciable (bye bye Baker v. Carr and its progeny) but that racial gerrymandering issues impacting the Voting Rights Act were. A separate case of racial gerrymandering from Alabama, as indicated above, was heard by the Court during the first week of the current term. At this point it might be fair to ask what's got me a bit flummoxed about Moore. That's a fair question and I'm glad you asked. Moore doesn't give a rip about the Voting Rights Act. Rather, it poses a question, a novel question as it were, as to whether the Court would uphold the state legislature on something, a wackadoo something, called the "independent state legislature theory (ISLT)."
ISLT has been circulating around Federalist Society salons and other right-wing legal organizations for a few decades. Thanks to our Framer’s creating our federalist system of government, where the federal government has plenary authority over certain duties (e.g., foreign policy), the states have plenary authority over “items” left to the states under amend. X, (e.g., education), and where both have shared responsibility over federal elections, with the feds leaving the administration of these elections to the states.
Essentially the ISLT would turn 60 years, if not more, of legal precedence on its head. Currently, if a state legislature passes legislation, including legislation impacting elections, and challenge to those laws would be heard and resolved by the state courts, consistent with that state’s constitutional scheme. This is part of the system of checks and balances incorporated at the state and federal levels to prevent one branch of the government becoming more powerful than the other two branches.
”NO!” say the ISLT proponents. ISLT holds that the United States Constitution grants plenary authority in two areas:
The Elections Clause, art. I, §4, cl. 1 states: “The 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.”
The other Constitutional basis for ISLT comes from the Presidential Electors Clause, art. II, §1, cl. 2, which reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
Contorting the application of the above language further, the Supremes have weighed in from time to time on voting issues. In the 2000 Bush v. Gore case (good times!), in support of the majority’s judgment in - spoiler alert - Bush’s favor, Chief Justice Rehnquist wrote in a concurring Opinion that the language of the above two Constitutional provisions diluted (but not extinguished) a state court’s ability to alter that state’s legislative scheme touching on elections. While not embraced by the courts, it gave added life to the ISLT proponents who argue that only the Congress can review a states election’s “statutory scheme.”
In 2019, in a 5-4 majority opinion, Chief Justice Robert’s laid out the issues in Rucho, and yes, North Carolina was a party to this litigation:
“The North Carolina plaintiffs complained that the State’s districting plan discriminated against Democrats; the Maryland plaintiffs complained that their State’s plan discriminated against Republicans. The plaintiffs alleged that the gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2, of the Constitution. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court.”
While all this sounds interesting and important, CJ Roberts really wanted to address the “justicability”of the case. In other words, he questioned whether the courts could hear these questions of partisan gerrymandering, even if some voters’ rights might not be equally protected as to the contested statutory scheme.
The “political question doctrine” prohibits federal courts from hearing cases that are grounded in “political disputes.” One of the earliest articulations of the Doctrine (Oetjen v. Central Leather Co.)
held that partisan opposition of the Executive’s formulation and implementation of foreign policy was a non-justiciable political question. Patisan issues have been traditionally vexing for the Courts because they could and (in the Court’s view) should be resolved through the existing political processes.
Using the “political question doctrine” in Rucho, Robert’s wrote that because partisan gerrymandering is political in nature (and in support of his contention, he fractures the historical basis for gerrymandering) the Court found that partisan gerrymandering was non-justiciable.
While Roberts didn’t embrace ISLT, he did show some sympathy to the independent state legislative enactment of elections laws. A year later, in the Trump litigation briefly considered by the Court, the Trump attorneys blatantly argued ISLT as a basis to send slates of electors back to the states. As we know, the majority of the Court rejected these assertions, but it wasn’t unanimous - Clarence Thomas, Samuel Alito, and Neil Gorsuch endorsed ISLT.
And now, in 2022, we have Moore v. Harper presenting the following Certified Question to the Court:
“Whether a State's judicial branch may nullify the regulations governing the "Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof," U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts' own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a "fair" or "free" election.”
So here we are. Nobody ever got rich predicting what a court will do, and I stink at math, but it seems to me the there are three Justices in the tank for ISLT. One Justice is at minimum persuadable. Two Justices are up for grabs but what are the odds one of them joins the others? How about two? If Coney-Barrett and Kavanaugh join Thomas, Alito and Gorsuch it doesn’t matter how persuadable Robert’s might be.
The impact of adopting ISLT could be far reaching and another nail would be driven into the already nail ridden coffin of democracy. Consider: party A and party B nominate two candidates for the presidency. On the designated November date, an election is held. Let’s say party B’s candidate wins the popular vote, but the electoral vote (thanks to the framer’s adherence to federalism it’s the only vote that truly counts) is in dispute with several states claiming “irregularities.”
In state S, at first blush candidate B seemingly “won” the popular vote. However, supporters of candidate A challenge the vote citing “irregularities” and voter “fraud.” Under ISLT, who would be the arbiter of this dispute? It is questionable whether a complaint could be brought to state court. However, through its investigative powers the state legislature would take this on!
Now, putting another log on this electoral dumpster fire, the state legislature is controlled by party A. The legislature then having completed its review finds that candidate A actually won the state and awards all the state’s electors to candidate A.
Let’s even posit that two other states, R and T, follow suit and swing the election to candidate A, who now is expecting to be inaugurated the following January 20th. Imagine the chaos. Where do aggrieved parties bring their case? The state courts under ISLT are prohibited from hearing the matter. Can the federal courts hear the case? Only if there’s a Voting Rights issue (ha ha ha ha! The Alabama case just heard at the beginning of the term will likely sound the death knell for the already eviscerated VRA), or a violation of the one man - one vote principle.
In our current political environment it’s almost impossible to adequately anticipate the public explosion caused by the result of this election no matter who wins the presidency. One thing is certain and that is democracy will come out with another black eye if not a fatal stab to its heart.
Because we don’t need a weatherman to tell which way the wind blows, we have to see Moore as an existential threat to our democracy.
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