Early Takes On SCOTUS Oral Argument in Moore v. Harper Today

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Update to SCOTUS Argument in Moore v. Harper Today Could Portend The End Of American Democracy.

Election law expert Rick Hasen has his hot take on today’s oral argument. Live-Blogging the Supreme Court’s Oral Arguments in the Moore v. Harper (Independent State Legislature); Now UPDATED with Analysis and Reason to Think Court Will Reject Maximalist Version of ISLT (excerpt):

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UPDATE:

After almost three hours of oral argument, a divided Supreme Court appeared searching for a middle ground to hold that in really egregious cases state courts can violate the federal constitution when they apply state constitutions (or potentially to interpret state statutes) to limit a state legislature in regulating federal elections. Such a ruling would inject federal courts into delicate state election law disputes, sometimes in the midst of elections in extreme cases. But it would not go so far as to turn every state court election decision (or election administrator interpretation) into a new federal lawsuit. It would be a bad ruling, but not an awful one.

Here’s how the Justices broke down at argument: there are three Justices who absolutely reject the independent state legislature theory. These are the three liberal justices: Jackson, Kagan, and Sotomayor. There are three Justices who appear to accept the doctrine pretty broadly: Alito, Gorsuch, and Thomas. So that leaves the Chief Justice, and Justices Barrett and Kavanaugh. They all seemed to be looking for a middle ground, one that would impose some meaningful limits on state supreme court opinions going off the rails in purporting to interpret state constitutions but override completely a state’s rules for setting the time, place, and manner for federal elections.

On the one hand, these pivotal Justices don’t like the maximalist opinion of the Legislators, but they see that there must be some limit for an out-of-control state court. They they could well adopt something like Chief Justice Rehnquist’s concurrence in Bush v. Gore: that sometimes a state court goes so far in interpreting a state law (in that case a state statute, in this case a state constitution) applying to federal elections that it becomes unconstitutional. Given the Legislators’ concession in this case (that Don Verrilli hammered home in this oral argument) that for purposes of this argument, the state supreme court correctly applied the state constitution, then these Justices should have to side with the state supreme court reining in the partisan gerrymandering in this case. What they will actually do is another question because oral argument is not a perfect predictor of what the Court will do.

In my view, the way to deal with this issue of where to draw the line is not through the elections clause but through the Due Process Clause. The leading case here is an 11th Circuit 1995 case, Roe v. Alabama, which says that sometimes a state court decision is so arbitrary and capricious that it is not really engaged in judicial review. That would present a very high standard to meet, but one that could be met in extreme circumstances. Going this route, would not cause a flood of new election litigation that would come (as I argue in my amicus brief) with the Legislators’ maximialist views of the independent state legislature doctrine.

Rick Hasen’s piece continues with his notes form the oral argument.

Supreme Court reporter Mark Joseph Stern did his hot takes on twitter.

So once again, American democracy might be saved by mere providence or good luck, as occurred on January 6, 2021, because the morally bankrupt Justices Thomas and Alito cannot find anyone but Justice Gorsuch to join their judicial coup against American democracy? We’ll see. I don’t trust any of the activist radical Republican justices.





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1 thought on “Early Takes On SCOTUS Oral Argument in Moore v. Harper Today”

  1. The New York Times editorializes, “This Case Should Never Have Made It to the Supreme Court”, https://www.nytimes.com/2022/12/09/opinion/supreme-court-moore-v-harper.html

    (excerpt)

    “The most important case for American democracy” in the nation’s history — that’s how the former appeals court judge J. Michael Luttig described Moore v. Harper, an extraordinary lawsuit that the Supreme Court considered in oral arguments Wednesday morning. Judge Luttig, a conservative and a widely respected legal thinker, is not one for overstatement.

    [It] is essential that people understand just how dangerous this case is to the fundamental structure of American government, and that enough justices see the legal fallacies and protect our democracy.

    [In] 2000 the chief justice at the time, William H. Rehnquist, proposed the idea in his concurring opinion on Bush v. Gore, and the independent state legislature theory has been floating around the fringes of right-wing legal circles ever since.

    To be clear, this is a political power grab in the guise of a legal theory. Republicans are trying to see if they can turn state legislatures — 30 of which are controlled by Republicans — into omnipotent, unaccountable election bosses with the help of the conservative supermajority on the Supreme Court. The theory has no basis in law, history or precedent. The idea that state lawmakers exist free of any constraints imposed by their constitution and state courts makes a mockery of the separation of powers, which is foundational to the American system of government. By the North Carolina lawmakers’ logic, they possess infinite power to gerrymander districts and otherwise control federal elections. It is a Constitution-free zone where no one else in the state — not the governor, not the courts, not the voters through ballot initiatives — has any say.

    [In] practice, the theory that the petitioners in the case are seeking to use would turn hundreds of state constitutional provisions into dead letters in federal elections. For instance, 48 states affirmatively guarantee a right to vote in their constitutions. (The federal Constitution still does not.) Most state constitutions guarantee free, fair, equal or open elections. Even the secret ballot — so fundamental to American democracy — is a creature of state constitutions. If the justices accept the most aggressive version of the independent state legislature theory that the petitioners want them to and even if they accept a weaker version, provisions like these could become invalid overnight, because the theory holds that state constitutions have no authority to impose any regulations on federal elections. (The Constitution and federal law remain supreme, so challenges to state legislative actions could still be brought in federal courts.)

    Some of the justices insist that they don’t — they can’t — pay attention to the real-world outcomes of their rulings. They’re just interpreting law. By that logic, this case should be rejected on its merits.

    First, the theory is based on bad legal interpretation. The Constitution uses the word “legislature” in describing who has the power to regulate federal elections. Because of this word, the theory’s supporters claim, state legislatures have nearly unlimited power in that realm. But as Judge Luttig has noted, the theory has “literally no support” in the Constitution. To the contrary, the framers who wrote the Constitution were concerned that state legislatures had too much power, not too little. The text they wrote makes many references to the powers of those legislatures and of Congress, but it never says or implies that they are immune to review by the judicial branch.

    Second, the theory is based on bad history. The best evidence its supporters offer is a two-century-old document that has long been known to be fraudulent. Written in 1818 by Charles Pinckney of South Carolina, a founding father, it is purported to be a replica of the plan for government that he introduced three decades earlier at the Constitutional Convention. But what he submitted in 1818 was not the real deal. James Madison suspected this immediately, as have virtually all historians to examine it in the years since.

    When the theory’s supporters sought to claim that the practices of early state legislatures proved that their side should win, Justice Sonia Sotomayor responded, “Yes. If you rewrite history, it’s very easy to do.”

    Third, if the Supreme Court accepts this theory, it will create a logistical nightmare in states across the country. That’s because the theory applies only to federal elections, not state elections, in which state courts unquestionably have a role to play. As a result, there would be two sets of rules operating at the same time, one for federal elections and one for state elections. Chaos and confusion would reign.

    Most important, the Supreme Court has already implicitly rejected the theory many times over. In precedents stretching back decades, the court has made clear that state courts have the power to set limits on what lawmakers can do when it comes to federal elections. As recently as 2019, the court rejected a plea for it to stop the extreme partisan gerrymandering in North Carolina and other states. In doing so, Chief Justice John Roberts explained that this is exactly the role that state courts should play. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” he wrote.

    [A]nother way to appreciate the absurdity of the theory is to consider who has come out for and against it. On one side, a large and bipartisan group of judges, government officials, former lawmakers, leading historians and constitutional scholars from across the political spectrum have rejected it. These include a co-founder of the right-wing legal group the Federalist Society, the chief justices of all 50 states, multiple Republican former governors and secretaries of state and civil rights organizations.

    On the other side, you will find a far smaller and less bipartisan cast of characters — among them, the Republican National Committee, a group of Republican state attorneys general and John Eastman, a former law professor last seen helping Donald Trump plan an illegal and unconstitutional coup to stay in office (an act that has exposed Mr. Eastman to a real risk of criminal prosecution).

    [T]here’s an old saying that only close cases make it to the Supreme Court. If they weren’t close, they would have been resolved in the lower courts. But Moore v. Harper isn’t a remotely close case. A ruling for the North Carolina lawmakers would flood the federal courts with election litigation that normally plays out in the states, upending the balance of federalism that defines American government. That’s not a conservative result; it’s a dangerously radical one.

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