WASHINGTON, DC – Following the Supreme Court’s announcement of its decision in Moore v. Harper, Constitutional Accountability Center Director of the Human Rights, Civil Rights, and Citizenship Program David Gans issued the following reaction:

The Supreme Court, in an opinion by Chief Justice John Roberts, recognized that the so-called independent state legislature theory has no basis in the Constitution’s text and history.  Echoing the text and history arguments presented in CAC’s amicus brief, the Chief Justice’s opinion resoundingly affirmed that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”  This is an important reaffirmation of a fundamental Founding-era principle: state courts can vindicate voting rights guarantees enshrined in state constitutions to limit state regulation of congressional elections.  A majority of the Court correctly rejected the radical and dangerous notion that state legislatures are free from state constitutional constraints when regulating congressional elections.

The most dangerous and sweeping version of the independent state legislature theory is now dead.  But litigation over the issue is far from over.  The Court suggested that federal courts would have the power to review state court judgments to ensure that state courts do not “transgress the ordinary bounds of judicial review” and “arrogate to themselves the power vested in state legislatures to regulate federal elections.”  But federal courts do not have the power to second-guess state court rulings simply because they may disagree with a state court’s interpretation.  If courts heed the Constitution’s text and history—as the Supreme Court rightly did today—any review of state court interpretations of state constitutional law must be appropriately deferential.

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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: 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.