The Supreme Court’s decision in Moore v. Harper is a defeat for the legal theories of the 2020 Trump campaign, but it gives new life to Bush v. Gore.
The Supreme Court’s decision in Moore v. Harper is a defeat for the legal theories of the 2020 Trump campaign, but it gives new life to Bush v. Gore.
A t first blush, the Supreme Court’s decision this morning in Moore v. Harper appears to deal a heavy setback to efforts to prevent state courts from deciding federal elections. By permitting state judicial review of congressional maps and election laws under state law — including the invalidation of specific laws by reference to open-ended state constitutional provisions — the decision raises the stakes of battles to control state supreme courts, which remain empowered to override the work of elected state legislatures. The decision also preserves the power of state referenda to constrain the drawing of legislative districts and the terms of voting laws.
But can creative liberal state courts just rewrite legislative rules on whatever basis strikes their fancy? That has been the position of progressives, but today’s decision does not go that far. By a 6–3 vote, the Court rejected the strongest version of the “independent state legislature” doctrine under which the federal Constitution gives primacy to state legislatures in writing laws governing federal elections for the presidency and Congress. It preserved a place for state courts not only in construing state election laws, but in invalidating them under state constitutions.
But the Court’s opinion, written by Chief Justice John Roberts and joined by Justices Brett Kavanaugh and Amy Coney Barrett as well as the Court’s three liberals, stopped short of entirely doing away with the federal court power to rein in rogue state courts that animated Bush v. Gore. While the Court noted its own concerns about how to define the terms and limits of the theory in practice, it is hard not to suspect that the case for a strong reading of the independent-state-legislature doctrine was badly weakened by its abuse by the Trump campaign in 2020.
In political terms, the decision may be good news for House Republicans. A crucial factor in the current House GOP majority, for example, came when New York’s highest court threw out a Democratic gerrymander under the state constitution. Had the Court in Moore held that state constitutions cannot limit the work of state legislatures in redistricting, the New York legislature would have been empowered to ignore that ruling going forward.
The Tar Heel Swamp
The immediate background of Moore is the perennial battle over redistricting in North Carolina. Justices of the North Carolina supreme court are popularly elected. The Democrat majority went on a rampage of newly invented judicial doctrines in 2021–22 after Republicans narrowed their majority on that court from 6–1 to 4–3 in 2020.
Among those rulings was a decision, Harper v. Hall I, freshly minting a new power of the state courts to strike down partisan gerrymanders under broadly worded clauses of the North Carolina constitution: the free-elections clause, which states that “all elections shall be free,” and the equal-protection, freedom-of-speech and freedom-of-assembly clauses, which mostly track their federal equivalents. A second decision, Harper v. Hall II, then rewrote the rules of Harper I to strike down additional congressional and state legislative maps drawn by the Republican state legislature. In the most glaring sign of what the Democratic activist judges were up to, not only did they devise a multifactor test without objective or consistent criteria, thus maximizing judicial discretion to reach a desired result, but they also placed apparently decisive significance on whether legislative maps had bipartisan support — thus effectively giving the Democratic minority a veto on maps drawn by the popularly elected Republican majority.
The voters of North Carolina were not amused. In 2022, they flipped two more seats on the state supreme court, giving control to Republicans. In late April 2023, in Harper III, the new majority promptly overruled both Harper I and Harper II, concluding:
Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review. Moreover, like the Federal Constitution, our constitution does not provide any judicially discernible or manageable standards for determining how much partisan gerrymandering is too much. . . . Any attempt to adjudicate such claims forces this Court to make numerous policy determinations for which there is no constitutional guidance. We are not authorized or equipped to make these determinations.
The Independent-Legislature Theory
In the meantime, the legislature had appealed Harper I to the Supreme Court, arguing that the state courts did not have the power to wrest mapmaking powers from the state legislature because the federal Constitution commits certain powers to the “legislature” of a state, rather than to the state government as a whole.
The Constitution speaks in two places about the power of state legislatures over elections. Article I, governing the election of members of Congress, provides:
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 Senators.
Article II, governing presidential elections, provides:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors [to choose the president and vice president].
The crucial legal question is whether references to “the Legislature” in these clauses has any meaning different from saying “the State.” Courts typically try to avoid reading language in statutes or the Constitution as if they have no meaning.
These provisions attracted national attention only once before the disputed 2000 presidential election. That occurred in the 1892 election, when Democrats captured the legislature of Michigan (a state that voted Republican in every presidential election from 1856 through 1928) and devised a novel plan to have electors chosen by congressional district. President Benjamin Harrison denounced the plan, but the Court, in McPherson v. Blacker, unanimously upheld that scheme (still used today in Maine and Nebraska), on the grounds that the state legislature gets to decide how electors are chosen. It contributed to Harrison’s defeat.
McPherson did not, however, address a collision between the state legislature and the state courts. That came in 2000, when the Florida supreme court took upon itself the power to start rewriting laws after the election, throwing out explicit rules on the basis of general provisions of the state constitution, with no real consistent, limiting principle except that its decisions kept helping Al Gore challenge the outcome. The Supreme Court, in Bush v. Palm Beach County Canvassing Board, unanimously overturned one of the Florida court’s recount decisions, warning:
There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, § 1, cl. 2, “circumscribe the legislative power.”
This, in a nutshell, is the independent-legislature theory: that there is a textual commitment of power to state legislatures in these specific situations, unlike situations where the federal Constitution is silent or refers more generally to “states.” That commitment means that state courts don’t have the final say on when and how the legislature’s rules apply.
When the 2000 election returned to the Supreme Court in Bush v. Gore, three justices (Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas) embraced the theory explicitly, concluding under Article II that the Florida court could not just throw out the work of the legislature. Legal conservatives have long regarded the concurrence as a more textually principled basis for the resolution of the 2000 election litigation. But Justices Anthony Kennedy and Sandra Day O’Connor were unwilling to address the issue, so the 5–4 Bush v. Gore majority opinion instead concluded that the Florida court’s recount ruling had violated equal protection by applying different standards to some parts of the state than others.
This was a more open-ended standard that purported to be limited to the facts of the case. It was, therefore, a less principled and less textually oriented decision than what the Rehnquist Article II concurrence proposed, although the majority’s resolution reflected the fundamental — if never textually stated — principle that the rules for counting votes cannot be changed after an election has been held. The three conservatives, perhaps bending to the need for a united front on a tight time frame, joined the majority opinion as well.
In the years since Bush v. Gore, the Court has been careful to never again cite the majority opinion as a real precedent, but courts have struggled with its implications. Despite the absence from the constitutional text of any specific rule about when election rules can be changed either by legislatures or by courts, the Supreme Court has used its supervisory power over the federal courts to develop the discretionary Purcell rule, which essentially says that courts should not change the rules for an election too close to when it is going to be held — thus, kicking the can of many redistricting and election-law challenges into the next election cycle, sometimes to the point where they get dismissed for being moot before they can return to the Supreme Court.
The bovine excrement hit the fan in 2020. On the one hand, a bunch of liberal state courts and state elections administrators used the pandemic or conspiracy theories about Trump abusing the Postal Service to justify throwing out their states’ election rules. This was done in Pennsylvania, in North Carolina, and in Minnesota not long before the election; the Supreme Court justified staying out of these fights on the basis of Purcell, then refused to rule on them after the election on mootness grounds. Justice Thomas blasted this at the time as an abdication of its duty to clarify federal law. In Pennsylvania, the result was that a few thousand votes that arrived after the statutory deadline were counted — not enough to change the outcome of the presidential race, but enough to potentially affect other down-ballot elections.
After the 2020 election, it was the Trump campaign’s turn to play the Al Gore role and try to change the rules after the game had been played. As has long been recognized — and acknowledged by the Court in McPherson — the power of state legislatures under federal law to choose how their states select presidential electors is so broad that a state could, if it wanted, have them chosen by the state legislature rather than by a popular vote. This was commonly done by many states between 1789 and 1824; South Carolina continued to do so all the way to the Civil War, and Colorado did so in 1876, when the state was admitted to the union so close to Election Day that the legislature argued that a proper election could not be held.
Trump and his partisans took the independent-legislature theory to a new and radical extreme: They argued that a state legislature could appoint electors even after the state had conducted a popular vote for president on Election Day, and the very existence of this theory was used to justify pressure not only on state legislatures but also on Congress and the vice president to allow that power to be exercised. Legally, this argument faced at least one glaring problem: Article II says explicitly that “Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” A state that decided after Election Day to change its method of choosing electors, so that it did not certify the electors chosen on Election Day, would violate federal law adopted pursuant to Article II.
In the end, despite Republican control in 2020 of both houses of the state legislatures of Georgia, Arizona, Wisconsin, Pennsylvania, and Michigan, no state legislature attempted to follow Trump’s lead and test his extreme theory. But we all remember what developed in practice as a consequence of this argument.
After the 2020 election, three things were clear. First, the independent-state-legislature theory was a potentially potent defensive weapon with which to prevent activist courts bent on rewriting the rules from overturning elections. Second, so long as it was unsettled, the theory could potentially be abused as an offensive weapon by unscrupulous actors, and that potential attracted in the legal press the toxic odor of January 6. And third, the contours of the doctrine remained unresolved, thus leaving the possibility that the next presidential election might once again involve federal courts across the country applying it in conflicting ways and dropping another unwelcome national election dispute on the Supreme Court’s doorstep.
Not a Moot Point
The immediate question for the Court in Moore was whether to once again deploy the mootness dodge to leave the question unsettled. The parties and commentators on the right and left had switched sides at various points about whether they wanted the Court to decide this issue or find a way to avoid doing so.
Roberts argued that the case was not moot because Harper I had barred the original maps drawn by the legislature, and that order remained in effect. Thomas, in a dissent joined by justices Neil Gorsuch and Samuel Alito, argued that the case was moot because Harper III had overruled the state court’s prior two decisions and left the North Carolina legislature free to draw further maps without any review of whether they were partisan gerrymanders or any means to punish the parties if they brought back the old maps: “This case is over, and [the legislature] won.” Alito, while joining the portion of Thomas’s dissent arguing that the case was moot, stopped there and did not express an opinion on the merits of Moore.
There are technical points made by both sides, but it is worth recalling that the mootness rules are not dictated by any explicit constitutional text. Like the Article III standing rules, they are extrapolated from the textual requirement that the Court decide only live “Cases” or “Controversies.” At the outer edges, even more so than in the standing context, mootness involves some irreducible level of prudential judgment about what constitutes a live controversy.
Indeed, the mootness rules have long allowed the Court to decide genuinely moot cases if the issue is one that is likely to recur and hard to ever decide in a timely fashion. While Roberts did not invoke that exception to mootness in Moore, the prior interaction of the independent-state-legislature doctrine with Purcell and mootness, combined with the instability around American presidential elections, offers a strong case for the Court to settle the doctrine at the first arguable opportunity. Thomas himself said so in the Pennsylvania case in 2021:
[The Pennsylvania Supreme Court’s] decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable. . . .
An election system lacks clear rules when . . . different officials dispute who has authority to set or change those rules. This kind of dispute brews confusion because voters may not know which rules to follow. Even worse, with more than one system of rules in place, competing candidates might each declare victory under different sets of rules.
That said, the case for reaching the merits of the federal-law dispute in Moore would be stronger if the Court clearly settled the rules of the road going forward. Today’s decision does not actually do that.
Who Is the Legislature?
Is “the Legislature” supreme in making state election law? In deciding what powers are reserved to a state legislature, there has long been some tension in the Court’s case law over what is a legislature and what isn’t, and the drawing of legislative districts — rather than voting laws or the selection of electors — has been the central battleground:
- In Ohio ex rel. Davis v. Hildebrant (1916), the Court upheld a provision of the Ohio constitution allowing popular referenda to overturn laws made by the state’s assembly. The voters used that power to throw out a new congressional map. The Court rejected the argument that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I.” In short, Hildebrant allowed the power of “the Legislature” to be exercised, at least in part, by the state’s voters.
- In Smiley v. Holm (1932), the Court held that a governor could veto a congressional redistricting plan, just like any other state law, without trampling upon the legislature’s power under Article I, because legislatures act “in accordance with the method which the State has prescribed for legislative enactments.”
- In Arizona State Legislature v. Arizona Independent Redistricting Comm’n, (2015), the Court allowed the Arizona constitution to vest redistricting authority in an independent commission, on the theory that a state retains broad leeway over where to allocate its legislative power. Thus, not only could legislative power be vetoed by the people or the governor, it could be delegated in the first instance to a separate body.
Thomas protested this last decision in a blistering dissent at the time: “The majority’s revision . . . singles out the Elections Clause as the only one of the Constitution’s seventeen provisions referring to ‘the Legislature’ that departs from the ordinary meaning of the term.”
In Moore, Roberts concluded that the federal Constitution does not override state constitutional limits on the power of state legislatures. He cited not only precedent but also the long history of state legislatures being ordinarily subject to state constitutions, gubernatorial vetoes, and judicial review:
The argument . . . does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Legislatures, the Framers recognized, “are the mere creatures of the State Constitutions, and cannot be greater than their creators.” . . . Nothing in the text of the Elections Clause undermines [this understanding]. When a state legislature carries out its constitutional power to prescribe rules regulating federal elections . . . the legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.
Given his past jurisprudence, it is unsurprising that Roberts would react poorly to a suggestion that some powers of the legislature cannot be reviewed by the courts. He drew a distinction between the function of making election rules and state legislatures’ power to ratify constitutional amendments, a power that is committed to them alone by Article V and is constrained neither by gubernatorial veto nor judicial review.
Thomas didn’t buy it. He offered two main points of departure with the majority. First, he started with the premise that state power to regulate federal elections is a power granted by the federal Constitution (which creates those elections and offices), not by the states. Second, he argued for a distinction (which the majority claimed was unworkable) between legislative procedures (such as gubernatorial vetoes) and external limits on legislative power (such as state constitutional rules constraining how legislatures may draw district lines). But he could persuade only Gorsuch to his position.
Judges Going Rogue
Roberts was plainly alarmed by the implications of an argument that the work of state legislatures might be immune from judicial review under state law. But he was not prepared to let go of some Bush v. Gore–style federal court check on state courts going completely rogue themselves. It is perhaps notable, in this context, that while Thomas had ruled on the Article II argument in Bush v. Gore, Roberts, Kavanaugh, and Barrett had all worked on the Bush legal team at the time. All three were in today’s majority, and they were careful to leave some room for a future Court to prevent a recurrence of what the Florida supreme court attempted in 2000.
In an effort to give some meaning to the language of Articles I and II, or at least head off state courts from “circumvent[ing] federal constitutional provisions,” Roberts emphasized that “state courts do not have free rein.” For now, at least, the three liberal justices signed on to this, thus ensuring that some more limited version of the independent-state-legislature theory — at least the Bush v. Gore version, not the 2020 Trump-electors version — will live to fight another day.
The majority noted that the various opinions in Bush v. Gore used different standards to describe when a state court’s state-law rulings might justify a federal court in reversing them as an undue invasion of the legislature’s power to make laws. Roberts declined to state which standard applied. Kavanaugh did too, in a concurring opinion focused entirely on this issue, but suggested that it would look something like the concurring opinion Thomas had joined back in 2000:
Chief Justice Rehnquist’s standard [from Bush v. Gore] is straightforward: whether the state court “impermissibly distorted” state law “beyond what a fair reading required.” . . . Justice Souter’s standard, at least the critical language, is similar: whether the state court exceeded “the limits of reasonable” interpretation of state law. . . . And the Solicitor General here has proposed another similar approach: whether the state court reached a “truly aberrant” interpretation of state law. . . . I doubt that the precise formulation of the standard . . . would be the decisive factor in any . . . disagreement.
Notably, the Court ducked any further detail by noting that the North Carolina legislature (having won in Harper III) was not asking for any ruling on whether Harper I & II were actually such an extreme reading of state law. That also meant that the Court did not address the fallback argument that even if a state court may review legislative maps, it has no power to draw its own maps without invading the province of the legislature under Article I.
Thomas fretted that the Court, by leaving this open-ended, was storing up trouble for another 2000 even as it tried to close the door on another 2020:
The majority opens a new field for Bush-style controversies over state election law—and a far more uncertain one. . . . The standards to judge the fairness of a given interpretation are typically fewer and less definite [with a state constitution than with a statute].
Nonetheless, the majority’s framework appears to demand that federal courts develop some generalized concept of the bounds of ordinary judicial review; apply it to the task of constitutional interpretation within each State; and make that concept their rule of decision in some of the most politically acrimonious and fast-moving cases that come before them. . . . It is difficult to imagine what this inquiry could mean in theory, let alone practice . . .
In the end, I fear that this framework will have the effect of investing potentially large swaths of state constitutional law with the character of a federal question not amenable to meaningful or principled adjudication by federal courts. . . . I would hesitate long before committing the Federal Judiciary to this uncertain path.
If it is surprising that the liberal justices expressed no such concern, recall that they got what they wanted today, and they needed the votes of two of Roberts, Kavanaugh, and Barrett to get it. If they object to leaving this door open, they left themselves maximum flexibility to say so, or not, in a future case depending upon whose ox is being gored.