Surprise! The Supreme Court Votes in Favor of Democracy (Part 2)

In Part 1, we analyzed Allen v. Milligan, in which the Supreme Court applied Section 2 of the Voting Rights Act (VRA) to protect African Americans’ voting rights in Alabama.

In Harper v. Moore, the majority on the Supreme Court completely rejected the independent state legislature (ISL) theory, which could have led to chaos in the 2024 election.

Under this crackpot notion, state legislatures have total, unfettered authority to set the rules and conditions for conducting elections. They have absolute power in this area, so their actions should not be subject to any review by state courts. ISL adherents argue that courts should not be able to nullify a legislature’s laws and decisions regarding elections, even if they are egregious moves to entrench the party in power.

A Far-Fetched Rationale for the ISL

The ISL ideologues base their rationale on an extremely literal reading of the Election Clause of the U.S. Constitution. Article 1, Section 4 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, except as to the Places of chusing (sic) Senators. ”

Mainstream legal scholars agree that this clause empowers state legislatures to pass laws governing elections. However, they note that Congress has the explicit power to supersede those laws, so the state legislatures’ authority is subject to Federal authority and not absolute. In addition, they note that courts can nullify or modify state laws on a broad variety of issues, such as labor conditions, environmental matters, etc., and there is no basis for exempting election laws from judicial review.

The ISL theory was a fringe idea until Donald Trump challenged the election results in 2020. As part of the effort to overturn the election, some ISL proponents lobbied state lawmakers to ignore the popular vote results, because of supposed fraud, and to put forth alternative slates of Presidential electors. Luckily, those efforts failed.

However, several Republican attorneys general have subsequently adopted this theory. It’s important to see the context for the Harper case, which shows how far these officials will push this notion in their quest to hold onto power.

North Carolina’s Gerrymandering Battles

North Carolina is split 50/50 between Republican and Democratic voters. However, the state legislature, dominated by Republicans, has engaged in racial and partisan gerrymandering for years. The Federal courts have nullified the racially discriminatory maps, but the U.S. Supreme Court has refused to intervene in partisan gerrymandering disputes. So those battles wind up in state court.

After the 2020 census, lawmakers passed a redistricting map that basically awarded 10 Congressional seats to Republicans and four to Democrats. The state Supreme Court, which had a Democratic majority, rejected the map on the grounds that the N.C. constitution did not permit such a distorted, partisan gerrymandering. The court appointed a special master, who drew up a map allotting seven districts to each party, in line with the electorate’s 50/50 split.

The N.C. legislature appealed the court’s decision to the U.S. Supreme Court, claiming that the N.C. supreme court could not rule on the lawmakers’ map, because of the ISL theory. The N.C. So the Republican attorney general took a case all the way to the Supreme Court, in order to preserve a highly gerrymandered electoral map.

While the appeal was pending, a judicial election took place, and Republicans won a majority on the N.C. supreme court. They reversed the previous court’s decision, which had been issued only a few months before. The new court ruled that partisan gerrymandering was not “judiciable” under the state constitution. The judges remanded the case to a lower court, although they did not order it to reinstate the former, gerrymandered map.

Chief Justice John Roberts and Justice Clarence Thomas/Getty Images 

Supreme Court Flatly Rejects ISL

Writing for the majority, Chief Justice Roberts quickly dismissed the independent state legislature theory and reaffirmed the critical role of judicial review in the American political system:   

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

This was a 6-3 decision, with Justices Kavanagh and Coney Barret joining Roberts and the three liberal Justices. Justice Thomas wrote a dissent, in which Justices Alito and Gorsuch joined.

The majority’s opinion came as a relief, but it is disturbing that three Justices opposed the ruling.

It is also disappointing, but not surprising, that the Court seemed unperturbed by the extreme partisan gerrymandering in North Carolina. In Rucho v. Common Cause (2019) , the Court declined to intervene in such disputes. The Court said that such disputes are primarily political and that it did not have the expertise to evaluate the mathematical models used to demonstrate gerrymandering.

This Court draws the line at blatant racially based gerrymandering, but it will not overturn obviously partisan redistricting maps….which often have the effect of reducing minority voters’ power.

But Two Dissenters Were Sympathetic to ISL

Thomas dissented from the Harper decision on two main grounds. In his view, the case was “moot” (no longer a live judicial issue), because the new state supreme court had reversed the previous court’s decision and sent the issue back to the lower court. The supreme court also invited the legislature to consider devising new maps. In normal circumstances, that might have been a reasonable approach.

However, Thomas also seemed sympathetic to the ISL theory on its merits, despite the obvious dangers of letting a legislature run amok. Alito joined Thomas’ dissent only on the issue of mootness. Gorsuch agreed with Thomas on the mootness point and on the merits.

Avoiding Threats to the 2024 Election

Here is the problem with the mootness argument. If the Supreme Court had not conclusively dismissed the ISL theory, far-right Republican partisans would probably use it in their efforts to contest the 2024 election results. They could ask state lawmakers to pass outrageous laws restricting forms of voting. Or they could lobby legislators to ignore the popular vote in the state and create an alternative slate of Presidential electors.

In either case, extremely partisan Republicans might claim that the state courts could not intervene to block the legislature’s actions. Ultra-right Republicans would certainly launch dozens of lawsuits on those grounds, in many states, which could delay the election process and lead to chaos. This would have been a replay of Gore v. Bush, on steroids.

The majority on the Court undoubtedly recognized this threat, so they may have decided to take the Harper case even though the specific dispute might have become moot. The three ultra-conservative Justices seemed prepared to roll the dice on that issue, regardless of the consequences. If Thomas, Alito and Gorsuch had won this decision, they would have put our election process, and possibly our democracy, at grave risk.

Book Recommendation

Evan Thomas has written a gripping and provocative account of the Truman Administration’s decision to drop atomic bombs on two Japanese cities to end World War II. In Road to Surrender, he describes the key role that three men, two Americans and one Japanese, played in bringing the war to a conclusion so the U.S. would not unleash even more atomic bombs. Thomas’ rationale for supporting the decision may surprise you.

The Wall Street Democrat