Poison pill concerns about Moore v. Harper
We all breathed sighs of relief over Tuesday’s U.S. Supreme Court decision smacking down the independent state legislature theory in Moore v. Harper. But as it does regularly, what comes to mind is Han Solo’s advice to young Luke Skywalker not to get cocky.
Court observer Dahlia Lithwick pointed this morning to “poison pill concerns” about the ruling from a New York Times opinion. The notion that the courts have no role in reviewing state legislatures’ rules for federal elections is not entirely dead and buried. As Solo also cautions, “We’re not out of this yet.”
Richard H. Pildes of NYU’s law school, author of “The Law of Democracy: Legal Structure of the Political Process,” notes the wiggle room the court majority left in the decision’s wording:
The decision merely says that “state courts do not have free rein” and that they 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.”
The court offers no concrete understanding nor any example of what that means. It’s clear that a majority was cobbled together among conservative and liberal justices by agreeing to decide this part of the case in the narrowest terms. Indeed, the court announced this constitutional constraint but avoided telling us even whether the North Carolina Supreme Court — in the decision the U.S. Supreme Court reviewed — had violated this vague limitation.
North Carolina’s constitution, unlike that of some other states, does not expressly ban partisan gerrymandering. But the state court interpreted general provisions in the state constitution — such as that requiring elections to be “free and fair” — to in effect ban partisan gerrymandering. Whether this decision transgresses ordinary judicial review or exemplifies it remains a mystery. Had the court resolved that question, it would have provided much-needed guidance for 2024. But the majority might well be divided on that question, with the opinion papering over that division rather than confronting it.
The public benefits, Pildes, observes, from “clear rules laid out well in advance of Election Day.” North Carolina Republicans’ rejiggering election rules year after year in search of electoral advantage leaves even election veterans such as myself scrambling to keep up. Shifting sands add to campaigns’ confusion and to the lack of voter confidence in elections about which Republicans claim to care while systematically undermining.
The Moore decision’s vague wording “has ensured that legal uncertainty on this remaining constitutional front might roil the 2024 elections — and it has opened a different, if less expansive, set of problems” for Pildes.
For illustrative purposes, let’s say in 2024 the Wisconsin state legislature passes a law establishing deadlines for requesting or returning absentee ballots, but a state court rules those deadlines unconstitutional because they contradict the state constitution’s guarantee of the right to vote. The losing party will now turn to the federal courts and argue that the state court has gone “too far” in its interpretation of the state constitution.
With Tuesday’s ruling, candidates and political parties are going to constantly test the boundaries in 2024 in the effort to gain partisan advantage. And with at least some of these challenges, like the hypothetical one above, the Supreme Court might well be called on for an answer.
I promise you that North Carolina Republicans will try. They are relentless. On the other hand, I don’t see how this opening for parties challenging unfavorable state Supreme Court rulings to the U.S. Supreme Court changes the status quo. That is the status quo.