By Marjorie Cohn / Truthout
Chief Justice John Roberts has historically not decided cases in a way that protects voting rights. In 2013, he authored Shelby v. Holder, which drove a stake through the heart of the Voting Rights Act. And in 2021, he voted to further weaken the Act in Brnovich v. DNC. But this past month, Roberts surprisingly authored two new Supreme Court opinions that support the right to vote.
The Moore decision removes the threat of the GOP-favored “independent state legislature” doctrine to legal challenges of extreme gerrymandered congressional maps and racist voting laws.
GOP Legislators in North Carolina Sought to Eliminate Judicial Review of Their Voting Procedures
After the 2000 presidential election, a right-wing majority of the U.S. Supreme Court halted the counting of Florida ballots on Equal Protection grounds and delivered the presidency to George W. Bush. Chief Justice William Rehnquist wrote a concurrence (joined by Clarence Thomas and Antonin Scalia) in Bush v. Gore, suggesting that the obscure “independent state legislature” doctrine should have been used to overrule the Florida Supreme Court’s decision allowing the ballot recount because it conflicted with the deadlines established by the Florida legislature. But the U.S. Supreme Court has never embraced the doctrine.
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That fringe theory would give state legislatures virtually unchecked power to establish discriminatory voting laws and gerrymander congressional districts that favor one political party with no judicial review by the state supreme court. Adopting the doctrine would fly in the face of more than 200 years of U.S. jurisprudence.
According to the Brennan Center for Justice, the independent state legislature theory would undercut hundreds of state constitutional provisions and state court decisions, and over 650 delegations of authority to state officials by state legislatures to oversee federal elections.
“The independent state legislature theory is a dangerous and undemocratic fiction,” American Constitution Society President and former Sen. Russ Feingold stated. “We are relieved to see the Supreme Court uphold the role of judicial oversight by state courts and reject the notion that a state legislature can act without restraint when it comes to federal elections.”
“This theory targets Black, Latino, Asian American, and Native American voters, making it harder for our communities to make our voices heard,” Maya Wiley, president and CEO of the Leadership Conference on Civil and Human Rights, said in a statement celebrating the court’s decision in Moore.
On June 27, a 6-3 majority of the court declined an invitation by North Carolina Republicans to adopt the independent state legislature doctrine in Moore.
This controversial theory undergirded efforts by Donald Trump to steal the 2020 election from Joe Biden. Pennsylvania Republicans unsuccessfully challenged a ruling of the Pennsylvania Supreme Court (that relied on the state constitution) extending the deadline for absentee ballots.
In Moore, Roberts — joined by Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson, Brett Kavanaugh and Amy Coney Barrett — wrote, “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause.”
Clarence Thomas wrote in dissent, on behalf of himself, Neil Gorsuch and Samuel Alito, that the court shouldn’t even have reviewed the Moore case because it was “moot.” Thomas and Gorsuch would have applied the independent state legislature doctrine.
If the court had adopted the independent state legislature doctrine, hundreds of state constitutional measures that govern federal elections could be nullified. It would make it easier for state legislatures to engage in voter suppression and undermine election results. It would enable the drawing of gerrymandered congressional districts. State legislators in swing states could reject slates of electors chosen by voters and appoint their own substitutes (as Trump advocated).
Kagan noted during oral argument in December 2022, that the independent state legislature doctrine “is a theory with big consequences.” It would permit “no state constitutional remedy” for “the most extreme forms of gerrymandering” by legislatures, which “could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits.” Legislatures could insert themselves into “the certification of elections.”
The Elections Clause of the U.S. Constitution (Article 1, Section 4) says, “Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.” The independent state legislature doctrine interprets the word “legislature” to mean only the actual legislature. But the Supreme Court has always assumed that legislature includes rulings of state courts interpreting the state’s constitution, citizen ballot measures, and governors’ vetoes.
Republicans in North Carolina Drew an Extreme Gerrymandered Congressional Map
GOP legislators in North Carolina petitioned the U.S. Supreme Court on February 25, 2022, to restore their extremely gerrymandered congressional map that would have given Republicans as many as 10 of the state’s 14-member congressional delegation in the midterm elections. North Carolina is evenly divided between Republicans and Democrats, as reflected in the 7-to-7 seat split between the two parties in the midterms.
The North Carolina Supreme Court (which then had a 4-3 Democratic majority) held on February 14, 2022 that the map was a partisan gerrymander that violated the state constitution’s guarantee of free and fair elections, and it refused to allow the map to be used in the 2022 midterm elections.
In March, the U.S. Supreme Court upheld the state supreme court ruling blocking the use of the map while the legal issue was being considered by the federal high court.
Meanwhile, after the U.S. Supreme Court agreed to review the case, the North Carolina Supreme Court (which switched to a 5-2 GOP majority in the November 22 midterms) reversed its prior ruling and dismissed the challenges to the gerrymandered map, holding that it didn’t have the authority to review those challenges.
In light of the new decision of the state supreme court, the U.S. Supreme Court could have refused to hear the case because it was now “moot” (as Thomas, Gorsuch and Alito argued in their dissent). But the high court took on the legal issue and six of its members squarely rejected the independent state legislature doctrine.
Since 1803, the Supreme Court Has Reviewed the Constitutionality of Laws
In the course of explaining why laws are subject to judicial review, Roberts cited the seminal 1803 case of Marbury v. Madison, “proclaiming that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’”
“The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote for the Moore majority. He quoted the court’s 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Comm’n, in which the late Ruth Bader Ginsburg noted, “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”
Roberts wrote in Moore, “Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein.” He said that federal courts have the authority to review decisions of state courts to ensure that they don’t violate federal law.
While rejecting the independent state legislature doctrine and affirming the power of state and federal courts to review decisions of state legislatures, the majority didn’t prescribe a standard of review. “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” Roberts wrote.
In his concurrence, Kavanaugh argued for Rehnquist’s proposed “straightforward standard” of review for federal courts to use, that is, “whether the state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required.’”
The Future Impact of Moore
Moore will have no practical effect on the North Carolina voting map at issue in this case, since the state supreme court authorized the GOP-controlled legislature to draw gerrymandered maps as it wished and the U.S. Supreme Court didn’t disturb that ruling.
But the Moore decision could have immediate implications in key battleground states such as Wisconsin, whose voters just elected a liberal majority to its supreme court that could strike down Wisconsin’s gerrymandered congressional map under the state constitution.
The website Democracy Docket reports that there are 28 active state court cases challenging congressional maps and state laws that regulate federal elections. Seven of the cases involve state constitutional challenges to congressional maps, nearly all of which raise claims of partisan gerrymandering. The other 21 lawsuits challenge voter suppression and election subversion laws. They will not now have the threat of the independent state legislature doctrine hanging over them.
Whether Roberts, Kavanaugh and Barrett had a change of heart about protecting voting rights, or simply sought to legitimize a beleaguered Supreme Court widely viewed as partisan, or aimed to neutralize their gutting of affirmative action and student loan forgiveness, they did the right thing in Moore.
What the high court resolved in Moore was not radical. It maintained the status quo which had been the law for more than two centuries — that state courts could review legislative enactments affecting voting rights.
But they also preserved the role of the federal courts in state court decisions that impact federal election laws. In so doing, they left the door open for the U.S. Supreme Court to overrule state court decisions that uphold the results of free and fair elections.
It is incumbent upon Congress to pass meaningful voting reform. But, as Jessica Corbett wrote at Common Dreams, “Since the election chaos of 2020, the U.S. Senate’s filibuster rule, right-wing obstructionist Democrats, and Republicans reclaiming control of the House of Representatives have impeded the passage of national voting rights legislation, as GOP state legislators have continued voter suppression efforts across the country.”
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, the bureau of the International Association of Democratic Lawyers, and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” Radio.