Breathe a sigh of relief—sort of.
The Supreme Court issued its highly anticipated decision in Moore v. Harper, an election case that could have significantly undermined the principles of a fair democracy. The case asked whether state courts can use their state constitutions to strike down state voting laws. North Carolina Republicans, who had drawn an egregiously unfair congressional redistricting map, argued that the state constitution imposed no restraints on the legislature when drawing congressional maps or enacting any other federal election rules. The state politicians wanted to be free agents in passing voting laws without any oversight from state courts. The Court rejected that radical claim.
But it still left the door open to federal judicial oversight over state court decisions on election law. Therefore, while the decision in Moore v. Harper is mostly good news, it could present problems as litigation over the 2024 election unfolds.
Moore involved the Republican-controlled North Carolina legislature’s attempt to aggrandize Republican control in the Tar Heel state. After the 2020 Census, the legislature drew a congressional districting map that would all but assure that Republicans would win 10 of the state’s 14 seats in the U.S. House, even if the statewide vote totals between the Democratic and Republican candidates were about equal. The plaintiffs sued, and the North Carolina Supreme Court struck down the map under the state constitution by a 4–3 vote, finding that the map violated the state constitution’s requirement that “All elections shall be free.” A severely skewed map dictating the outcome made the state’s elections not “free.”
The Republican legislative leaders then appealed to the U.S. Supreme Court, which typically will not review the decision of a state’s highest court when the issue is solely about state law. But the North Carolina Republicans advanced a novel theory: that the U.S. Constitution gives authority to the state legislature—and only the state legislature—to enact election rules for federal elections. The textual hook is Article I, Section 4 of the U.S. Constitution, known as the Elections Clause, which says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The North Carolina Republicans said that because the U.S. Constitution grants authority to the state “legislature,” then state courts cannot limit what the state legislature can do in this context.
This argument—the “independent state legislature” theory of election law—would have wreaked havoc on state protection for the right to vote. All 50 state constitutions have safeguards for voting rights. The Court has recognized the right to vote under the U.S. Constitution only implicitly and has under-protected that right, while state constitutions offer more meaningful security for voters.
The North Carolina redistricting case shows how state constitutions better protect voters: the U.S. Supreme Court ruled in 2019 that the U.S. Constitution does not prohibit partisan gerrymandering, but the North Carolina Supreme Court found that the more explicit language in the state constitution places limits on self-interested politicians when drawing maps. (That said, earlier this year, the North Carolina Supreme Court reversed itself on this question after a change in the court’s composition gave conservative justices a majority. Many observers thought the North Carolina Supreme Court’s subsequent decision would moot the case before the Roberts Supreme Court, but the majority found it ripe for review.)
If the U.S. Supreme Court had embraced the theory that state constitutions are meaningless when state legislatures enact rules for federal elections, it would have cut off a significant avenue of rights protection. Several justices had indicated they agreed with the idea in various rulings in 2020 during the pandemic, and many Court observers worried that a majority would adopt the radical assertions in Moore v. Harper and limit the ability of state courts to invoke their state constitutions.
A six-justice majority refused to go that far. With Chief Justice Roberts writing the opinion, the Court ruled that state courts simply engage in standard judicial review when they strike down a legislative enactment that violates the state constitution. Using history and precedent, it shut the door on the independent state legislature idea in plain terms: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” Since state legislatures are “creatures” of state constitutions, “when legislatures make laws, they are bound by the provisions of the very documents that give them life.”
But the opinion also allows the Supreme Court to review state court decisions under state constitutions. Invoking Bush v. Gore, the Court indicated that state courts could go too far. “State courts do not have free rein,” the Court said, even when they interpret state constitutions. Instead, “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.”
What this standard means is unclear, and Roberts refused to provide further guidance. The justices, aggrandizing power to themselves, simply said that the Court can still review state court decisions to ensure that rulings, solely under state constitutions, are not so far afield that they take away too much power from the state legislature. In a concurring opinion, Justice Brett Kavanaugh offered some ideas, citing the late Chief Justice Rehnquist’s opinion in Bush v. Gore that analyzed “whether the state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required.’” That standard raises more questions than answers, leaving it up to the justices in future cases to decide when a state court “impermissibly distorts” state law. Justice Clarence Thomas, in dissent, pointed out the amorphous nature of the inquiry. The future cases, he noted, “will arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded ‘the bounds of ordinary judicial review’ in construing the state constitution.”
We can therefore predict the likely scope of many lawsuits in the lead-up to the 2024 election: a statehouse will pass an overly restrictive voting law, a state court will strike it down under the state constitution, and then the legislature will ask the Supreme Court to rule that the state court went too far in taking away power from the legislature. And we have no idea what the Supreme Court will say about that question.
Moore v. Harper is mostly a good ruling, given that the Court rejected the extreme theory of election law. State constitutions can continue to offer bold protection to voters. But, as with many election law cases, the underlying details could lead to nefarious outcomes. The decision opens the door for the justices to continue to review state court rulings and thereby cabin the important protections for voters within state constitutions. The Moore decision underscores the value of state constitutions—but unfortunately, it likely will not be the last decision on this issue.
Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of “Vote for US: How to Take Back Our Elections and Change the Future of Voting.” Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.