Richard L. Hasen writes:

It is indeed a cause for celebration that the United States Supreme Court, on a 6-3 vote in Moore v. Harper, rejected an extreme version of the “independent state legislature” theory that could have upended the conduct of elections around the country and paved the way for state legislatures to engage in election subversion. But after the celebration comes the inevitable hangover, and with all the hoopla it is easy to miss that the Supreme Court has now set itself up, with the assent of the liberal justices, to meddle in future elections, perhaps even deciding the outcome of future presidential elections (as it has done in the past). Chief Justice John Roberts drove a hard bargain.

The facts and law are complex, but here’s the basics. The North Carolina general assembly—the state’s legislature—is controlled by Republicans and drew its congressional districts to maximize the number of Republican seats. The state supreme court, then controlled by Democrats, held that the partisan gerrymander by the General Assembly violated that part of the state constitution that guaranteed North Carolina voters the right to free and fair elections. The legislators then went to the U.S. Supreme Court, arguing that the state court ruling violated the U.S. Constitution, in particular the part of the Constitution that gives state legislatures the power to decide the rules for conducting congressional elections. (There’s a similar provision involving the power of legislatures to decide the rules for conducting presidential elections.)

The legislators advanced an extreme theory, which thankfully Chief Justice Roberts rejected in his opinion for the court, joined by conservative justices Amy Coney Barrett and Brett Kavanaugh, along with the three liberal Justices. The extreme theory was that state legislatures can pass whatever election rules they want for federal elections, and state courts could not constrain them even when they violated their own state constitutions. The court made clear that legislatures do not have this free floating power, and that one must understand the legislature’s power within the ordinary system of state government, including judicial review. Even more, the Court reaffirmed a 2015 ruling that was decided just 5-4 before three of the newer conservative justices joined (in which the chief justice had dissented) confirming that states do not violate this theory when they use voter initiatives to create independent redistricting commissions to draw congressional lines. That’s another reason for celebration. [Continue reading…]