Moore v. Harper has been one of the most watched cases of the Term and one that has elicited a lot of apocalyptic rhetoric, often unaccompanied by any hint of the constitutional text in question. In a six-justice majority opinion today by Chief Justice Roberts, the Court rejected the “independent state legislature” (ISL) theory that had been the cause of so much alarm. The Chief’s opinion was joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson.
I provide a quick summary, with some commentary, here. I might offer further comments later today. (For deeper background, see my Part 1, Part 2, and Part 3 posts from last November.)
The Court majority made three general rulings.
First (pp. 2-11), it ruled that it retained jurisdiction to review the judgment below of the North Carolina supreme court.
Second (pp. 11-26), on the issue that garnered the most attention, it ruled that the Elections Clause of the Constitution does not insulate state legislatures from the ordinary exercise of state judicial review. It thus rejected ISL. As I explained in point 4 of my Part 1 post:
ISL (as [one of its proponents] puts it) “is rooted in the fact that states lack inherent authority to regulate federal elections; their only power over such elections comes from the U.S. Constitution.” The Elections Clause confers that power specifically on “the Legislature” of each state, not on the state generically, so the power of the state legislature under the Elections Clause is not necessarily subject to the usual state-law constraints (though it is of course expressly subject to Congress’s authority to “make or alter” the rules governing elections for senators and representatives).
The legislative defendants in this case did not advance the most expansive version of ISL but instead drew a distinction between legislature procedure or method (which may be prescribed by the state constitution and enforced by the state courts) and substance (which may not). (See point 7 in my Part 2 post.) The majority opinion rejects such a distinction. It states that the Court’s precedents do not support such a distinction (I’m inclined to disagree, for the reasons spelled out in point 10 of my Part 2 post) and that there is no “defensible line between procedure and substance in this context” (count me skeptical).
Third (pp. 26-29), it ruled that state courts “do not have free rein” to interpret state law in cases that implicate the Elections Clause.” It declined to adopt any test for when a state court goes too far, but instead “hold[s] only that state courts may not 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 brief concurring opinion, Justice Kavanaugh said that he would adopt the “straightforward standard” set forth by Chief Justice Rehnquist in his concurring opinion in Bush v. Gore (2000).)
Justice Thomas dissented, joined by Justice Alito on the first issue and by Justice Gorsuch on all three.
In Part I of his opinion (pp. 2-17), Thomas concludes that subsequent proceedings in the state courts have mooted the entire dispute and that the Court is therefore obligated to dismiss the case.
In Part II (pp. 17-24), Thomas explains why he is unpersuaded by the majority’s reasoning on ISL. He defends the distinction between procedure and substance.
In Part III (pp. 24-27), Thomas expresses his doubts about how the federal courts are supposed to exercise judicial review of state-court decisions that implicate the Elections Clause. The majority, he says, “opens a field for Bush [v. Gore]-style controversies over state election law.”