WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Moore v. Harper, a case in which the Supreme Court is considering whether the Elections Clause prevents a state court from enforcing voting rights guarantees enshrined in a state constitution to limit a state legislature’s regulation of congressional elections, Constitutional Accountability Center Director of the Human Rights, Civil Rights, and Citizenship Program David Gans issued the following reaction:

The so-called independent state legislature theory is an atextual and ahistorical theory that would eviscerate our ability to hold free and fair elections and would wreak havoc with our democracy.  During three hours of oral argument in Moore v. Harper, the North Carolina legislature’s plea to annul state checks and balances on the power of the legislature came under withering criticism from justices across the ideological spectrum.  For example, Justice Sonia Sotomayor, echoing a point made in CAC’s amicus brief in the case, pointed out that throughout American history, state constitutions have regulated federal elections.  And Justice Ketanji Brown Jackson asked, “how can you cut the state Constitution out of the equation when it gives the state legislature its power.”

This criticism was warranted: the idea that the Elections Clause prevents state courts from safeguarding voting rights enshrined in state constitutions is a radical one that has no basis in the Constitution’s text and history and would nullify key provisions in state constitutions of every state in the nation.  Justice Elena Kagan picked up on this point, observing that the ISLT would have “big consequences”: “it gets rid of the normal checks and balances on the way big governmental decisions are made in this country . . . [at] exactly the time that they are needed most.”

Even members of the Court’s conservative supermajority exposed the problems with the state legislature’s radical and dangerous theory.  The state legislature had suggested that procedural state constitutional checks and balances might be appropriate, while substantive ones would not.  Both Chief Justice Roberts and Justice Amy Coney Barrett sharply criticized this easily manipulable substantive-procedural line.  Chief Justice Roberts called the gubernatorial veto—upheld by the Supreme Court in Smiley v. Holm—substantive, noting that it allows a governor to block legislative action on substantive grounds.  And Justice Barrett highlighted the problems with the substantive-procedural line, questioning whether it is “rooted in the Constitution” and observing that it is a “notoriously difficult” distinction to observe in practice.

The ISLT is an anti-originalist power grab that has no basis in the Constitution’s text and history and conflicts with decades of Supreme Court, and the doctrine’s glaring holes repeatedly emerged in today’s argument.

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Resources:

Case page in Moore v. Harper: https://www.theusconstitution.org/litigation/moore-v-harper/

David H. Gans, Originalism Demands Only One Answer in the Supreme Court’s Big Elections Case, Slate, Nov. 2, 2022: https://slate.com/news-and-politics/2022/11/originalism-supreme-courts-moore-harper-elections-case.html

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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