Jen Taub
♥️ Phew! In Moore v Harper, SCOTUS held that the elections clause "does not insulate state legislatures from the ordinary exercise of state judicial review." #SCOTUS
Scott Pilutik
SCOTUS just rejected the independent state legislature theory 6-3 (Gorsuch, Alito, and Thomas dissenting).
Had North Carolina prevailed, future elections could've simply ignored voters entirely, with state legislatures declaring winners without the possibility of judicial review.
This was the untested path by which Trump sought to overturn the Biden win in 2020, so it's something of a relief that SCOTUS has closed that door.
/1
Scott Pilutik
It's not 100% great news, though, b/c SCOTUS re-reserved the right for themselves to second-guess state court opinions of state law on elections questions.
/2
The Supreme Court decides not to destroy democracy in the United States
Six justices decided not to burn the right of the people to govern themselves to the ground #SCOTUS
John Roberts Has Wrested Back Control of the Supreme Court #SCOTUS
https://slate.com/news-and-politics/2023/06/john-roberts-supreme-court-kavanaugh-barrett-allies.html
There’s a Time Bomb in Progressives’ Big Supreme Court Voting Case Win #SCOTUS
https://slate.com/news-and-politics/2023/06/supreme-court-voting-moore-v-harper-time-bomb.html
Supreme Court Rejects a Republican Effort to Hijack Elections
In Moore v. Harper, the court ruled against the controversial “independent state legislature” theory #SCOTUS
Dahlia Lithwick
Roberts majority in Moore is a renunciation of the mad maximalist version of the Independent State Legislature theory
"The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.
Marbury v. Madison, 1 Cranch 137, famously proclaimed this
Court’s authority to invalidate laws that violate the Federal Constitution. But Marbury did not invent the concept of judicial review.
/1
State courts had already begun to impose restraints on state legislatures,
even before the Constitutional Convention, and the practice continued
to mature during the founding era. James Madison extolled judicial
review as one of the key virtues of a constitutional system, and the
concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society’s “fundamental principles.” Id., at 177..
/2
The Elections Clause does not carve out an exception to that fundamental principle. When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review. Pp. 11–26.
/end
Dahlia Lithwick
It is not Debbie Downer to worry that there is a poison pill in the Moore holding that can destabilize elections. It's a logical bet on future outcomes based on the voting rights records of several members of the majority. If the court had wanted to blow up the Independent State Legislature theory altogether it could have done so. Whether something is dicta or a promise is not knowable the day it comes down.
#politics #voting #elections
https://www.nytimes.com/2023/06/28/opinion/supreme-court-independent-state-legislature-theory.html