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December 8, 2022
The Supreme Court heard oral argument in the case of Moore v. Harper on Wednesday. Court observers believe that the reactionary majority is two votes short of adopting a fringe legal theory that has no support in the Constitution or precedent. That is good news, indeed—but we should not assume victory until the Court issues an opinion that rejects the Independent State Legislature theory. The consensus view among Court observers is that Justices Roberts, Kavanaugh, and Barrett are looking for a compromise solution, explained below.
The media coverage of the issues presented in Moore v. Harper is inconsistent; there is much good reporting, but many commentators continue to recklessly conflate two different aspects of the ISL theory. To cut through the confusion, I will attempt to streamline the issues and reduce the legal terminology (for which I ask indulgence from legal experts and scholars who read this analysis).
In Moore, the Court granted review of the following two-part question:
Can a state court
invalidate regulations regarding congressional elections enacted by a state legislature pursuant to the “time, place, and manner” Elections Clause in the US Constitution, and
if yes, can a state court substitute its own regulations if the state constitution authorizes it to do so?
Here is the Elections Clause of the US Constitution that gives rise to the question under review in Moore:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The North Carolina legislature exercised its power under the Elections Clause to create gerrymandered congressional districts. Those districts were invalidated and redrawn by a North Carolina state court—as permitted by the North Carolina Constitution. (See North Carolina’s Petition for Certiorari at pages 1-2.)
Against those facts and law, the state of North Carolina claims that the Elections Clause provides no role for state courts in determining the “time, place, and manner” of federal elections for Senators and Representatives. Accordingly, North Carolina asks the Supreme Court to throw out the congressional lines drawn by the North Carolina state court.
The parties opposing the state of North Carolina are voter advocacy groups. They claim (correctly) that the reference to “the Legislature” in the Elections Clause refers to the state’s legislative power. As explained by Mark Joseph Stern in Slate, the Framers understood “Legislature” to refer to the entire legislative process of the states:
The word [“Legislature”] encompasses the entire power that makes laws—which is why, for instance, a governor can veto a congressional map. Second, even if “legislature” meant a specific political body, there’s no indication that the Framers intended to cut out the rest of state government, letting representatives flout all the usual rules of lawmaking. State legislatures have always been understood as creatures of their state constitutions, with no special power to bypass the charter that created them. Third, since the start of the republic, state courts have imposed limits on election laws passed by the legislature.
For the above reasons, courts have uniformly held that the reference to “the Legislature” in the Elections Clause refers to the aggregate legislative power of the state. But North Carolina wants the Supreme Court to rule that only the state legislatures have authority under the Elections Clause.
During oral arguments, three reactionary justices (Alito, Thomas, Gorsuch) signaled their willingness to adopt the radical version of the ISL theory espoused by North Carolina. Three justices (Kagan, Sotomayor, Jackson) signaled their opposition to adopting any version of the ISL theory. And three justices (Roberts, Kavanaugh, and Barrett) signaled their willingness to find a “compromise” solution.
See Ian Millhiser in Vox, Supreme Court Justice Amy Coney Barrett is likely to block a GOP attack on democracy in Moore v. Harper.
See also, The Supreme Court’s Most Conservative Justices Got Humiliated on Wednesday. (“Great lawyering—and, surprisingly, Amy Coney Barrett—debunked a legal theory designed to subvert democracy.)
So, what would a compromise under Moore v. Harper look like? The proposed compromise suggested by Justice Roberts makes no sense, but here it is:
A state court can review state election laws regarding the “time, place, and manner” of federal elections to determine if they violate the state constitution—but the US Supreme Court can review the rulings of the state courts.
Why does the proposed compromise make no sense? Because the US Supreme Court has no jurisdiction to review rulings of state courts regarding the validity of state laws under state constitutions.
Under Justice Roberts’ proposed compromise, the US Supreme Court would review the rulings of state courts only if those rulings are “outrageous” or “egregious.” Presumably, Roberts’ proposed standard of review would go something like this: The US Supreme Court would not second-guess a state court ruling that the phrase “during regular business hours” means 7:00 AM to 9:00 PM. But the Supreme Court would review a state court ruling that “regular business hours” means between Midnight and 3:00 AM.
There is no rational basis for Roberts’ compromise, but if it results in the rejection of North Carolina’s radical interpretation of the ISL theory, it is probably worth the cost.
So, we may have dodged disaster. We will have to wait for the opinion to see what mischief the reactionary majority will create.
I cannot close without this reminder: Regardless of the ruling in Moore v. Harper, Congress can ALWAYS supersede state laws regarding the time, place, and manner of federal elections—including outlawing partisan gerrymandering. (“But the Congress may at any time by Law make or alter such Regulations . . . ”). Congress can and should pass voting rights reform to outlaw the pernicious and antidemocratic ploys enacted by GOP legislatures across the nation. But that would require Congress to create a carve-out from the filibuster for voting rights legislation. It is that simple—and that hard.
However hard it might be to overcome the filibuster, we need only surmount that obstacle to prevent the dire predictions of “the end of democracy” from being realized if the ISL is adopted by the Supreme Court. We are not powerless to avert disaster; the Constitution tells us so. Don’t let anyone tell you differently.
Stacey Abrams and Raphael Warnock.
Several readers noted that Stacey Abrams has been overlooked in the celebration of Raphael Warnock’s victory on Tuesday. Without taking anything away from Warnock’s superb campaign, the comment by readers is right. Abrams built a powerful “get to out the vote” infrastructure in Georgia over the last decade, infrastructure that helped Biden win Georgia in 2020, and likely helped both Warnock and Ossoff win in 2020-21. See, e.g., How Stacey Abrams helped Warnock, Ossoff win Georgia Senate seats.
Reader reaction to Warnock victory.
Although everyone was relieved and happy with Raphael Warnock’s victory, many readers expressed anxiety over his narrow margin of victory. Others were stunned that 1.8 million Georgians would vote for someone as manifestly unqualified as Herschel Walker. Those feelings are understandable.
But we should not minimize the margins of Warnock’s victory. Warnock won by 97,000 votes, or 2.8 percentage points. In an evenly divided purple state, that is a strong showing, indeed—and compares favorably with Biden’s victory in 2020—12,000 votes, and Obama’s loss in Georgia in 2012 with only 45% of the vote. In perspective, Warnock’s victory was impressive.
Moreover, the election took place in a state in which Republicans are adept at voter suppression. The run-off system is itself designed to suppress turnout—which it did. More than 3.84 million Georgians voted in the general election in November, but only 3.53 million voted in the run-off—a drop off of 300,000 votes.
We need to await more sophisticated analysis from election data firms, but any Democratic win in Georgia is an accomplishment. In a week or two, we need to talk about overall trends in the midterms. There were bright spots as well as serious room for improvement. Raphael Warnock was a bright spot! For the moment, let’s savor the victory.
Germany breaks up coup plot.
In a plot with eerie similarities to the January 6th insurrection, QANON terrorists in Germany planned to storm the German parliament in hopes of provoking a national insurrection. See CNN, Germany coup plot: 25 suspected Reichsburger extremists arrested for planning to overthrow government. Oh, and the coup-plotters hoped to secure assistance from—wait for it—Russia!
As many commentators have noted, the early Nazi efforts to discriminate against and stigmatize Jews and LGBTQ people were modeled on the Jim Crow laws passed by southern states in the US. It is only a matter of time before we learn that the QANON terrorists in Germany were in contact with January 6th insurrectionists. You read it here first.
After Trump-backed Herschel Walker lost his senate Bid in Georgia, a spate of articles appeared on Wednesday that posed similar versions of the same question: Is it time to count Trump out? See, e.g., The Hill, Did Herschel Walker just end Trump’s presidential hopes? and the NYTimes, Analysis: A Very Bad 3 Weeks for Trump After Losses and Legal Setbacks.
But other commentators are arguing that it is too early to count Trump out. See Thomas Edsall in NYTimes, Opinion | Trump Is Unraveling Before Our Eyes, but Will It Matter? I don’t always agree with Edsall, but on this issue, I think he has nailed it. Edsall notes that Trump maintains a 75% favorability rating among all Republicans and that 20%+ of the hardcore MAGA base believe that the January 6th insurrectionists were patriots. That 20%+ hardcore base is never going to abandon Trump—a bloc that is large enough to make Trump the spoiler in the 2024 GOP primary.
Edsall makes the case (with which I agree) that as Trump is weakened, he will draw more challengers in the primaries. A crowded primary will work to Trump’s benefit as a dozen candidates split the “non-Trump” vote—leaving Trump as the first-place finisher with his hardcore base. That dynamic fueled his 2016 ascendancy.
And then there is the fact that each new legal jeopardy increases the pressure on Trump to remain a viable candidate for as long as possible. The moment that Trump is a private citizen with no presidential aspirations is the moment of most extreme danger for Trump. If he fails to secure the GOP nomination, he will run as a third party—to damage the candidate who beat him and to remain out of prison for as long as possible.
As we see Trump grow weaker with each new revelation, we are gaining a view into the GOP’s dysfunctional future. We should never rely on the GOP to defeat itself, but we should recognize that however difficult our future path is, we are walking that path with candidates like Raphael Warnock. The Georgia run-off teaches us once again that we have every reason to be hopeful, but no reason to be complacent!
Talk to you tomorrow!