So much for the radical Supreme Court. A 6-3 majority on Tuesday rejected the argument advanced by some conservatives that the U.S. Constitution bars state courts from reviewing Congressional maps and voting laws. The result isn’t the runaway victory that progressives claim, but it will lead to more election-law controversies.
The dispute in Moore v. Harper centered on a North Carolina House redistricting plan in 2021 that was blocked by a Democratic majority on that state’s High Court. State Justices claimed the gerrymander violated their Constitution’s guarantee to “free elections,” “a right to assemble,” “freedom of speech,” and “equal protection of the laws.”
In other words, partisan state judges read a ban against political gerrymanders into the penumbra of state law. As a result, Democrats carried three more Congressional seats under a court redrawn map last November than they were predicted to under the Legislature’s.
GOP lawmakers argued that the North Carolina court’s ruling violated the U.S. Constitution’s Elections Clause, which requires “the Legislature” of each state to prescribe “(t)he Times, Places and Manner of ” federal elections. They claimed state courts may not strike down a legislature’s maps or voting laws affecting federal elections.
Chief Justice John Roberts rebuffs this reading of the Elections Clause with a middle of the road, or muddle of the road, decision. On the one hand, he says state legislatures are subject to state judicial review under the state constitution when they write election law.
But he also stresses that “state courts do not have free rein” and “this Court has an obligation to ensure that state court interpretations of state law do not evade federal law.” So state court election rulings will be subject to U.S. Supreme Court review.
Yet the majority declined to adopt a standard for reviewing such state court decisions. “The questions presented in this area are complex and context specific,” the Chief writes. “We hold 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.”
But what does “ordinary bounds” mean? Perhaps as with pornography, the Court will know it when it sees it. But in practice any review is likely to be highly deferential to state courts, as Justice Brett Kavanaugh notes in a concurrence. He favors Chief Justice William Rehnquist’s standard in Bush v. Gore (2000) that considers whether the state court “impermissibly distorted” state law “beyond what a fair reading required.”
As Justice Clarence Thomas explains in a dissent joined by Justice Neil Gorsuch, “it seems likely that ‘the bounds of ordinary judicial review’ will be a forgiving standard in practice,” swelling courts with election lawsuits that will be “quickly resolved with generic statements of deference to the state courts.”
The exceptions, he adds, “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.” Or vice versa.
This sounds right. Partisans routinely challenge state ballot laws in election years, and state courts often intervene at the last minute. Democratic attorney Marc Elias has built an entire legal practice doing this. The Court’s Moore ruling will invite more such legal elections mischief.
Will the High Court intervene and risk being attacked for election interference? Don’t count on it. The Court had precisely that opportunity in 2020 after Pennsylvania’s Supreme Court literally rewrote state election law to extend the deadline for receiving mail-in ballots. Justice Samuel Alito urged the Justices to hear the appeal, but the Court refused.
The Moore ruling is the third in three weeks that shows the supposedly partisan Justices tip-toeing around election law—almost certainly to the benefit of Democrats.
In Allen v. Milligan, the Court struck down a GOP Legislature’s map because it didn’t include a second majority-black district. On Monday the Court declined to review a lower judge’s order requiring that Louisiana’s Congressional map be redrawn to add another majority-black district. This encourages more lawsuits using Section 2 of the Voting Rights Act to strike down GOP gerrymanders.
The Roberts Court may have a center-right majority, but it includes many flavors of conservative. That won’t stop the left from trying to destroy individual Justices, though perhaps Moore will provide a 24-hour respite.
The Wall Street Journal
