Supreme Court Decides Moore v. Harper, Rejecting Maximalist Version of Independent State Legislature Theory But Giving Federal Courts a Chance to Second Guess Some State Rulings as “Transgressing the Ordinary Bounds of Judicial Review”

Election Law blog ^ | June 27, 2028 | Rick Hasen

[Stravinsky]

The United States Supreme Court, on a 6-3 vote, has adopted a compromise position on the meaning of the independent state legislature theory. The position of the Court, in a decision by Chief Justice Roberts, is one that rejects the argument that North Carolina offered: that a state supreme court could not even apply a state constitution’s protection for the right to vote when it comes to federal elections. Under this maximalist version, rejected by the Court today, state legislatures had a free-floating power to do whatever they wanted in federal elections, limited only by federal constitutional limits.

BUT, the Court held that the independent state legislature theory gives the U.S. Supreme Court (and perhaps other federal courts) the ability to second guess determinations of a state court interpreting a state statute in a federal election. So when a state court adopts a truly wacky interpretation of a state statute, the Supreme Court (or perhaps other federal courts) can reject that interpretation as “transgressing the ordinary boundaries of judicial review.” This was what the Chief Justice Rehnquist concurrence in Bush v. Gore said that the Florida Supreme Court did in interpreting Florida law.

Now the Court does not set out the precise contours of what that second guessing looks like—it could be like the Bush v. Gore concurrence or some other standard. (Justice Kavanaugh in his separate opinion talks about the different possible standards). Because the North Carolina legislators did not advance this theory (arguing only the maximalist position), the Court did not need to reach the precise standard. (Justice Thomas, joined by Justices Alito and Gorsuch, dissented, believing the case is moot and should not have been decided; they also disagree on the merits.

BUT 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.

More coming from me at Slate.

[ConservativeInPA]

It is becoming abundantly clear that there are only three textualist justices. We need another three.

[SuperLuminal]

At least, at my age, I can remember when the U.S. still possessed some residuals of a Republic...

When FDR decided to “temporarily” steal a portion of every workers paycheck to support the war, my Grandfather went on & on about how FDR had now made the move to ensure developing a serf mentality in the American people...

As he predicted, so it turned out...

[for-q-clinton]

But the SCOTUS said Trump and no one had standing to sue over elections. SO I guess they basically said they will pick the winners and losers and the states.

[DPMD]

Headline; talk about an impenetrable word salad.

[mewzilla]

Deep State will pick them.

Its SCOTUS will rubber stamp them.

[11th_VA]

The camel just got
In the tent …

[justme4now]

SCOTUS issues "opinions", nothing more!

That is all that they are Constitutionally "empowered" to do!

Too many have given too much weight, too much authority to too many Black Robed Tyrants

SCOTUS is a branch of our government and as such .. is also Constitutionally controlled!
(or supposed to be!)

Lest we forget, the Constitution is a control on Government .. not a control on the people.
Why do I bring this up?

Because, it seems that people have forgotten that our God Given Rights are not Privileges, are not "granted" by any branch of the Government .. which also includes the SCOTUS!
(it would seem that SCOTUS has also forgotten this fact).

They, (the people), have allowed themselves to become subservient to an authority that has No such authority!

A simple explanation:

[JesusIsLord]

More incursion into States rights by the federal government. A MAGA SCOTUS will return rightful state power back to the states.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." - 10th amendment, U.S. Constitution.

[Phoenix8]

Trump could have prevented this if he would have chosen some Justice Scalia types for his nominations. Not 3/3 moderates. Thanks Trump. Image—both the judges classified as actually somewhat “right” wing are before Trump. 3 of the 4 wishy washy middle of the roaders were nominated by Trump.

[Soul of the South]

“A MAGA SCOTUS will return rightful state power back to the states.”

Why wait for the SCOTUS to change? SCOTUS is taking this power from the states. As you suggest the states can just refuse to obey asserting the 10th Amendment. Time for governors and legislatures to just tell federal courts “NO”.

[JesusIsLord]

Time for governors and legislatures to just tell federal courts “NO”.

Joe likes to remind us that he has F16s - the states and the people have no such weapon.

What would be the reaction of the feds if a state(s) just said no? It would be an interesting reaction to say the least.

[rfp1234]

Does this mean the end of abominations like the PA, GA, WI, and AZ state legislatures ignoring obvious voting fraud with impunity?

[Brilliant]

Does the GOP have a case to de gerrymander California, Illinois, New York, Pennsylvania and several other states? Why is it that the Dems are able to get away with heavily gerrymandered states but not the GOP?

[RoseofTexas]

The judicial branch of government has been compromised. Just a couple of the supreme court justices are reliable. The rest are POS. I really believe they got spooked with all the unprotected protests that happened in front of their houses. That clear message to them from the NAZI DC evil swamp! . And it seemed to have worked …everything the Democrats have thrown at the Supreme Court they keep winning. I feel so defeated, and I’m beginning to hate what America has become. A two-tier system. We conservatives and Christians don’t stand a chance in this nation anymore. The constitution is rapidly becoming toilet paper for the DC swamp.

[Timmy]

The Roberts Court always looks for a way to avoid a decision. Causes a lack of direction for lower courts, ensuring the same case will be back again for more clarification.

[odawg]

This decision is more stark than any decision ruled on in years. It turns over control of elections entirely to the state and Federal judiciary. And the Federal judiciary is beyond the reach of voters. Roberts, Kavanaugh, and Barrett are working overtime to shed the shame of being thought of as conservative.

Kavanaugh even looks weak, Barrett is evidently scatterbrained, and Roberts is obviously compromised.

[Secret Agent Man]

If thats true elections are effectively meaningless.

Even more so than currently.

[Nateman]

...The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...

Its not a "Theory" . It is right there in Constitution and the Court of Supreme Whim just proved , yet again , that the Constitution is not what it says but whatever they want it to be. Jefferson said this about Judicial Review in a letter.

You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions,” he wrote to a correspondent. But that, Jefferson said, is “a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy . . . . The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots.

Jefferson was absolutely right. I'd say blocking state Legislatures from preventing vote fraud is the very essence of tyranny