Moore v. Harper Affirms American Democracy and Rule of Law

There’s a reason that Moore v. Harper, the independent state legislature theory case, generated almost 70 amicus briefs in the US Supreme Court: it presented a profound threat to our democracy and the rule of law.

In Moore, a North Carolina Supreme Court decision had invalidated a state legislative congressional districting map as violating the North Carolina Constitution. North Carolina partisan state legislators invoked the Constitution’s Elections Clause to seek to overturn that decision.

The Elections Clause provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof [.]”

The legislators argued that this clause, by requiring state legislatures to “prescribe” legislation governing federal elections, implicitly prohibited state courts from reviewing whether such legislation violated the state constitution. In effect, the Elections Clause made state legislatures’ federal elections laws “independent” of state constitutions and judicial review.

The Supreme Court’s decision categorically rejected the legislators’ claim that the Elections Clause exempted state federal election laws from state court review of their unconstitutionality. As the court held, “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”

Moore is a victory for free and fair American elections and the rule of law over partisan politics. It’s also a victory for principled constitutional interpretation and the cohesiveness of the Supreme Court.

The legislators, by arguing that the Elections Clause should be construed as making state legislatures “independent” of state judicial review for state unconstitutionality, were arguing, essentially, that the Framers intended to enable state legislative acts for federal elections to freely violate their state constitutions—effectively to make the laws superior to the constitutions.

While Marbury v. Madison is widely recognized as establishing the principle of judicial review, Lawyers Defending American Democracy noted in its amicus brief that Marbury also established that the Framers understood that written constitutions, by their nature, are superior to legislative acts.

The amicus quoted from Marbury, “Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be that an act of the legislature, repugnant to the Constitution, is void.” The opinion incorporated this language.

Under the Elections Clause, state legislatures have authority and responsibility to determine all the critical components of the voting process for federal elections, including voter registration, voter participation, inspectors’ duties, vote counting and publishing election results.

At this time of extreme partisanship, certain state legislatures are using their powers to pass or seek to pass laws that politicize and interfere with the impartial election process. This includes by empowering legislatures to determine election results and criminalizing the kind of assistance election workers regularly give to enable citizens to complete their votes.

Thus, it’s particularly important that state courts will continue to be available to enforce state constitutional rights to protect against unconstitutional legislative interference in congressional elections and districting.

The court held that, although state courts aren’t barred from reviewing state federal election laws, they don’t have complete discretion.

Since the Elections Clause pursuant to which the legislatures are acting is federal, the court has a duty to be sure state courts comply with that clause, just as it protects other provisions of the federal Constitution.

Specifically, the court has a duty to ensure that “state courts [do] not transgress the ordinary bounds of judicial review by taking to themselves the power vested in state legislatures [by the Elections Clause] to regulate federal elections.”

It is unclear how narrow a test the court will apply for reviewing state court decisions overriding state election laws for federal elections, how many such cases may arise in federal courts, and whether the federal courts will be able to adjudicate them fast enough to avoid disrupting the election process.

It will be vital for the court to closely monitor this situation and take necessary steps to ensure that federal judicial review doesn’t impair the legitimacy and timeliness of federal elections.

The Supreme Court majority performed a critically important function in addition to Moore’s importance on the merits. At a time when the court has been attacked for backing its analysis into desired outcomes, this opinion offered principled analysis, applying the impartial, traditional tools of constitutional interpretation, including text, history, practice, and precedent.

This kind of Supreme Court analysis is needed to begin to restore the severe loss in public trust the court has suffered as a result of widely perceived political, ideological, or personal decisions.

The American people want the Supreme Court to be a supreme court of law, not of political or personal agendas. It’s essential to the restoration of public trust that a critical mass of justices from different ideological backgrounds agree on what the law is. The Moore decision did just that and, in turn, helped strengthen our vulnerable democracy.

The case is Moore v. Harper, 21-1271, case decided June 27, 2023.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Gershon (Gary) Ratner is co-founder and a board member of Lawyers Defending American Democracy and the counsel of record for its amicus curiae brief in Moore v. Harper.

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