This week, the Supreme Court warded off a serious threat to democracy simply by affirming the status quo and, with it, the most basic of constitutional precepts.
Chief Justice John G. Roberts Jr. wrote for a 6-3 majority in Moore v. Harper that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” This finding might seem obvious, but to proponents of the so-called independent state legislature theory, at issue in this case, it’s anything but.
North Carolina’s Republican legislative leaders argued the state’s Supreme Court couldn’t bar the legislature from creating gerrymandered districts to benefit the GOP — even if they violated constitutional voter protections. The implications were dramatic: The U.S. Supreme Court already decided four years ago that federal courts are powerless to prevent partisan gerrymandering. A victory for the independent state legislature doctrine, then, would have erased the one remaining check on statehouses’ ability to distort the rule of law and the will of the people.
Thankfully, this week, the Supreme Court rejected the independent state legislature theory, affirming that, within limits, state courts can overrule state legislatures on federal election rules. The readiness of six justices to call this idea what it is — ahistoric, in clear conflict with precedent and, essentially, baloney — is all the more heartening given two of the majority, Brett M. Kavanaugh and Amy Coney Barrett, were appointed by President Donald Trump. Trump’s attorneys and advocates seized on an extreme interpretation of independent state legislature theory in the wake of his 2020 loss to try to persuade state legislatures to reject certified results that favored Joe Biden, and to suggest that Vice President Mike Pence could accept alternate slates of electors.
Also encouraging is the Supreme Court’s choice to weigh in so forcefully on the merits when it had an easy out: The North Carolina Supreme Court had reversed the decision that was under challenge. After the court tipped toward the GOP after November elections, it declared that the legislature could draw gerrymandered voting districts after all. Justice Samuel A. Alito took this course, not saying either way whether he supported independent state legislature theory but merely declaring the entire matter moot. His colleagues in the majority sent another message: The Supreme Court will remain a bulwark against sieges on democracy’s foundations — at least when the attacks are this egregious.
Of course, this doesn’t mean the rest of the country’s institutions, much less its politicians and their allies, will act as responsibly. The interplay among governors, legislatures, courts and beyond is as fraught as ever. To protect the integrity of our elections, all of these actors must do what those six justices did in Moore v. Harper: their jobs, fairly and impartially, according to what the Constitution demands.