Arrow-right Camera
The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Noah Feldman: The Supreme Court just stood up for electoral democracy

By Noah Feldman Bloomberg Opinion

In a 6-3 decision, the U.S. Supreme Court firmly rejected the so-called independent state legislature theory. This bizarre theory would have allowed renegade legislators to violate their state constitutions in setting rules for federal elections – allowing them to hijack elections for U.S. Congress and even the presidency.

The ruling was therefore a vote to protect the democratic process. That’s one of the Supreme Court’s most important jobs. It’s hard to overstate how important it is that this court is prepared to fulfill that duty.

The decision in the case, Moore v. Harper, was written by Chief Justice John Roberts. It was joined not only by the court’s three liberals but also by Justices Brett Kavanaugh and Amy Coney Barrett. That too is significant. By joining the opinion, Kavanaugh and Barrett showed that, notwithstanding their undoubted conservatism, they are not going to be radical revolutionaries when it comes to the basic structure of democratic elections. Sadly, the same cannot be said for the dissenters, Justices Clarence Thomas, Neil Gorsuch and Samuel Alito.

When the case was argued, I described in some detail the crazy argument that the court was encouraged to consider. Basically, it relied on extreme literalism. The U.S. Constitution says that it’s up to state legislatures to specify the time, place and manner of congressional elections. (Ditto for presidential elections.) Based on that language, the petitioners in the case asserted that a state supreme court – applying the state constitution and state laws – lacked the authority under the federal Constitution to strike down unlawful action by the state legislature. Their theory was that since the Constitution says that the state legislature is in charge, the state supreme court can’t intervene, no matter what.

Roberts’s opinion made it clear that this argument holds no water under basic principles of U.S. constitutional law. Under the fundamental theory that underlies not only the federal but all the state constitutions, the state legislature is the creature of the state constitution. And under the principle of judicial review, the state supreme court has the authority to interpret the state constitution and state laws, just like the Supreme Court has the last word on the meaning of the U.S. Constitution and federal law. To say otherwise, as the petitioners did, would distort the basic fabric of both state and federal constitutional law.

It’s kind of astonishing that anyone would disagree with this. But Thomas’ dissent did. To give you just a flavor of how arcane his argument was, Thomas insisted that, since congressional elections are a product of the Constitution, not of states’ rights, then the Constitution must be read as literally requiring the state’s lawmaking body to set election rules. Thus the state legislature – not the state constitution as applied by the state supreme court – must have the final word in state elections. (Only Gorsuch joined that part of Thomas’ dissent. Alito joined the part of the dissent that said the Supreme Court should not have taken the case because it was already moot.)

The practical question going forward is how the U.S. Supreme Court will review the actions of state supreme courts when they intervene in redistricting or in presidential elections. That issue has its roots in the Bush v. Gore litigation, in which the U.S. Supreme Court overturned the Florida supreme court’s application of Florida election law.

Roberts told state supreme courts that the Supreme Court would grant some deference to their interpretation of their own state constitution and state laws. But he also warned that the U.S. Supreme Court would strike down state supreme court rulings if they “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”

In a solo concurrence, Kavanaugh tried to refine the standard, advocating for the one advanced by then-Chief Justice William Rehnquist in the Bush v. Gore case: whether the state court had “impermissibly distorted” state law “beyond what a fair reading required.” He suggested this was effectively the same as the standard presented by Justice David Souter that case: whether the state court exceeded the limits of “reasonable interpretation” of state law. In truth, Souter’s standard is more deferential and would be the better one for the court to adopt should it find itself intervening in future cases.

The upshot is that, when the Supreme Court wants to, it will still overrule state supreme courts’ interpretations of state law when it comes to federal elections. That’s the enduring legacy of Bush v. Gore. But at least for now we know that six justices don’t want runaway state legislatures to break electoral democracy. That’s one less thing to worry about.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”