On December 7th, the Supreme Court heard oral arguments on Moore v. Harper, a case presenting one of the greatest threats to American democracy in the last 250 years. The Petitioners, North Carolina state legislators, are asking the Court, in effect, to interpret the U.S. Constitution in a way that would authorize partisan-controlled state legislatures to enact laws in their partisan self-interest, even if the laws violate their state’s constitution.
It is not hyperbole to state that if Petitioners prevail, the right to vote and have one’s vote be counted would be imperiled. Petitioners’ interpretation would make it impossible for courts to invalidate even the most extreme examples of partisan gerrymandering and would nullify state judicial enforcement of state constitutional protections for voting in federal elections. Moreover, it would facilitate partisan state legislatures seeking to overturn legitimate election results for congressional candidates – all severely undermining the fairness and impartiality of our congressional elections and citizens’ trust in our democracy.
Petitioners rely on language in the Constitution’s Elections Clause, stating that the “times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof [subject to potential override by Congress.]” Petitioners essentially argue that, since the Clause charges “legislatures” with prescribing such laws, the Framers intended that the legislatures have “exclusive” authority to determine their content, exempt from state court review.
Although Petitioners’ principal argument in its briefs had been that the Elections Clause made the legislatures’ power “exclusive” of any state court review, Petitioners seemed to abandon this argument before the Court. Instead, they reverted to their briefs’ default position: state judicial review was limited to “procedural”, not “substantive”, issues. Justice Amy Coney Barrett challenged that distinction’s workability.
Respondents argued that the Clause’s text contains no such exemption, there was no contemporary historical evidence that the Framers intended such an exemption, it was contrary to historical practice, and the Court’s precedents were inconsistent with the Petitioners’ interpretation.
LDAD submitted an amicus (friend-of-the-court) brief opposing Petitioners’ claim and supporting the State of North Carolina, Common Cause, and other Respondents. A major LDAD argument was that Marbury v. Madison – a Supreme Court precedent more than two centuries old – established that it was a “fundamental principle…of our society” that written constitutions were superior to legislative acts and that enactments by legislatures contrary to their constitutions were “void.”
Although respondents had not previously referenced this principle, at oral argument their counsel stated that: “state legislatures[are] subject to judicial review under the state constitution, because otherwise … if they make a law that’s unconstitutional under the state constitution, in the words of Marbury, it’s no law at all.” Similarly, the U.S. Solicitor General noted: “[a]nd this is blackletter law, Justice Jackson. A law that violates the Constitution is no valid law at all. And North Carolina, like in many other places, it’s void ab initio.”
The Justices’ greatest concern seemed to be to ensure that federal courts be able to review and overturn unfounded state court interpretations of state constitutions. In this regard, the Court seemed to be paying attention to an amicus brief submitted by the Conference of Chief Justices of the highest courts of all 50 States – a rare filing in the Supreme Court by the Conference. Its amicus brief urges that, if there were to be any such federal court review, the “standard” be “highly deferential” to the state courts’ interpretation of their own constitutions and “clear.”
Based on the common interest of multiple Justices expressed during oral argument in defining such a standard, it seems plausible, though obviously not assured, that a majority could agree on one. If so, the establishment of such a standard could be a foundation on which the majority could reject the independent state legislatures theory. A decision is expected in June, 2023.