Trump is the Biggest Loser in Moore v. Harper

Donald Trump wasn't a party or an amicus in Moore v. Harper, but he, more than anyone, is the biggest loser in the case. Although Moore concerned partisan gerrymandering of legislative districts in North Carolina, the Court's merits decision rejecting the independent state legislature (ISL) theory cuts off one of the most likely paths that Trump had open to him to retaking the White House if he secures the Republican nomination but loses the general election. After some background material, in today's essay, I'll explain why.

To briefly review and summarize, Article I, Section 4 of the Constitution provides: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof," subject to congressional modifications. ISL posits that this provision grants the power to draw districts to state legislatures--independent of state high court review. In a slightly narrower version advanced by the petitioners in Moore v. Harper, ISL allows state court review via "procedural" constitutional provisions but not "substantive" ones.

Today's majority opinion by Chief Justice Roberts rejects nearly every version of ISL. (More about that "nearly" below.) In so doing, the Court avoids a rather serious charge of bait and switch. After all, four years ago, in Rucho v. Common Cause, the Court (in another Roberts opinion) held that federal court challenges to partisan gerrymandering present a non-justiciable political question, but reassured the plaintiffs that, in addition to taking their cause to Congress, they could rely on state courts construing state constitutions to challenge partisan gerrymandering.

The Moore decision leaned heavily on the states' historical practices and the Court's own precedents. Essentially, all that the petitioners had on their side was a formalistic linguistic argument: "legislature" in Article I, Sec. 4, they contended, means the state legislative body and no one else. However, as the majority explained in detail, in this context, "legislature" means the state legislature acting in its ordinary lawmaking capacity--which routinely includes gubernatorial participation (by signing or vetoing legislation) and judicial review. The majority noted how state court judicial review under state constitutions was well known by the Constitution's framers and was part of the backdrop for the SCOTUS decision in Marbury v. Madison adopting a federal counterpart.

So how does this affect the next Presidential election? The key is that Article II, Section 1, contains a provision that is relevantly similar to the parallel provision of Article I. It provides: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . . ," subject to congressional override regarding timing.

Following his loss in the 2020 general election, Donald Trump and his team tried unsuccessfully to persuade legislators in Michigan, Pennsylvania, and other states with Republican legislative majorities to certify his slate of electors based on false claims of widespread election fraud. They obtained some support for the plan but ultimately failed. Only after those failures did Trump's team try to implement the "fake electors" scheme, whereby state legislators meeting outside of regular channels purported to name alternative slates of electors.

The fake electors scheme--which was rejected by then-Vice President Mike Pence at his own peril--is currently under investigation as a possible criminal conspiracy, but the important point for now is what came first: the effort to induce official action by state legislatures. If the Supreme Court had endorsed a robust version of ISL in Moore, and if Trump or an equally dangerous character were to obtain the 2024 Republican Presidential nomination, then phase 1 of the state legislative scheme to overturn the election could have come into play.

How so? Let's take Wisconsin as an example. Thanks to gerrymandering, Republicans have a supermajority in the state Senate. They also control the state Assembly, but not by a supermajority. The governor, Tony Evers, is a Democrat, and Democratic-affiliated Justices comprise a majority of the state Supreme Court. Now suppose that the US Supreme Court had endorsed ISL in Moore. Suppose further that 2024 is a rematch of Biden v. Trump (as seems likely even if Trump is in prison), and that Biden wins the popular vote and the Electoral College vote but that the latter is close enough that Trump needs to flip only a few states, including Wisconsin, by having them enact new laws giving their Electoral College votes to Trump. Doing so would violate the Electoral Count Act as modified by the Electoral Count Reform Act, but a Court that endorsed ISL might well hold the relevant provisions of that law invalid. In this alternative universe, the Wisconsin legislature passes a statute reassigning the state's electors to Trump, Governor Evers vetoes it, but the legislature nonetheless purports to certify the Trump electors. It would invoke ISL to say that the governor has no role in vetoing and that the Wisconsin Supreme Court has no role in reviewing what it has done. Wisconsin would then send two competing slates of electors. VP Harris might attempt to accept the genuine slate, but any decision of hers would be subject to override by the full joint session of Congress on January 6, 2025. Depending on the outcome of congressional elections, that could be in Republican hands. SCOTUS would reject any challenge it deemed justiciable by pointing to ISL.

By killing off the robust version of ISL, SCOTUS not only ensured that an attempt along the foregoing lines will fail. It also greatly reduced the likelihood that it will be attempted. True, that fact doesn't preclude even more radical approaches--such as another attempted coup of the sort that failed on January 6, 2021--but by definition law alone can never prevent lawbreaking. Closing off legal pathways for stealing an election is all we can reasonably expect of government officials, including Supreme Court Justices.

To be sure, there is that "nearly" to which I referred above. The one sliver of ISL that survived Moore concerns Supreme Court review of state court rulings regarding federal elections. As the Moore majority observed, in Bush v. Gore, Chief Justice Rehnquist, joined by Justices Scalia and Thomas, wrote a concurrence that rejected the ordinarily complete deference that federal courts give to state courts in construing state law. Given the federal interest, the late Chief said, when federal elections are involved, federal courts review state court constructions of state election laws using "an independent, if still deferential, analysis." The Moore majority acknowledged this view but did not endorse it, noting also that other Justices had promoted an even more deferential standard. Justice Kavanaugh, in a concurrence, said he thought the Rehnquist standard appropriate but also that, as a practical matter, it would rarely make a difference.

A number of instant analyses described the Court's statements on the federal review standard in critical terms. For example, Rick Hasen wrote: "make no mistake: This gives the U.S. Supreme Court the ultimate say over the meaning of state law in the midst of an election dispute. This is a bad, but not awful, result."

With due respect, this is a pretty good, but not wonderful, result. A wonderful result would have been full endorsement of the position endorsed by Justice Ginsburg in Bush v. Gore, which would treat state court decisions on state election law governing federal elections almost no differently from state interpretation of state law in general--with nearly complete deference. But the Moore Court didn't even reject that view. And in light of the fact that the petitioners didn't argue that the North Carolina Supreme Court had misconstrued the state constitution, there really was no opportunity for SCOTUS to say much more about the standard of federal review of state court determinations of state law in federal election cases; the issue in the case was the availability of state court review. It's enough that the Court used a case that was arguably moot to kill off the most dangerous versions of ISL. It's not fair to expect the Court to go well beyond even the issue that was litigated.

In any event, and with due respect, Professor Hasen and others who see a dark cloud in what the Court said about federal review of state court decisions are arguably fighting the last war. One could well imagine that in some circumstances going forward, a federal forum would be more friendly to Democrats complaining about Republican hanky-panky than would a Republican-dominated state supreme court. Georgia comes to mind, for example.

Finally, let's not overlook the holding of the case. It is now open to state courts to do something about partisan gerrymandering. For now, that's no longer a possibility in North Carolina, thanks to the change in control of the state Supreme Court, but it's an option in Wisconsin and elsewhere. Bottom line: Take the W.