The decision made in Moore v Harper on June 27th, as with many other Supreme Court decisions, will send reverberations throughout America. In the 6 to 3 decision, the court decided that state legislatures do not have unchecked power in orchestrating and overseeing elections in their states. 

The ruling dismissed the “independent state legislature” theory, which asserts that the ultimate power to run elections is imbued in the legislature, trumping other authorities like courts and independent commissions. The ruling lays another blow to a recent push by conservatives to alter the key functions of American democracy, a fight that they have waged over the past few years, with mixed results. 

But to understand the relevance of the case, its future impact, and what this means for the viability of America’s cherished institutions, we must first rewind. . .

Strife in the States

The year was 2020: people filled the streets to protest the killing of George Floyd by police officers, COVID had ground normalcy to a standstill, I was learning how to use social media to access all this news, and, oh yeah, there was a war for the future of America. President Donald Trump was facing fierce competition from then-candidate Joe Biden. But, with the pandemic challenging normal election operations, states created ballot drop boxes and eased mail-in voting laws to compensate for the abnormal times. 

Such policies gave voters multiple options for making their voices heard: 8 states allowed all elections to be conducted via mail, nine allowed small elections to be run in the same manner, and more laws were passed that made waiting in line at a booth to vote just one of several options. Under these new regulations, the Pew Research Center reported that 46% of voters used absentee or mail-in ballots in the 2020 election.

This past election was truly a hybrid one, but not everyone was in favor of such novel methods. Most notably, Republicans throughout the nation were angered at the changed rules that, to them, created the basis for a stolen election. The “Big Lie,” as the effort was dubbed by many Democrats, led to 147 House Republicans refusing to certify Biden’s victory. Donald Trump helped to push this charade which, despite being disproven by a majority of politicians and officials, is still believed by 76% of Republicans.

“Franky, we won this election”-Donald Trump, following Biden’s victory

State legislatures have played a key role because of their constitutional right to hold elections. As Article 1 of the Constitution states in its Elections Clause, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

The section of the Constitution stated is the Elections Clause, and it would be the central argument of the lawsuits

However, around the time of the 2020 election, many governors, judges, and secretaries of states were accused of evading state legislature power by expanding voting methods. To the dismay of Republicans, a judge in Rhode Island made it easier for voters to drop all witness requirements for those seeking a mail-in ballot. In Pennsylvania, a different court ordered that mail-in ballots arriving within a given time frame without a postmark would be assumed legal and thus counted. Similarly in Georgia, the secretary of state sent all active voters an absentee ballot application.

These actions upset Republicans, who claimed that the Constitution’s Elections Clause made steps taken by institutions other than the legislatures unconstitutional and thus invalid. As a result, Republican state legislatures throughout the nation began to pass bills to try to reverse laxed voting laws under the guise of helping to prevent another stolen election. In total, Republican lawmakers have created voter restriction laws in 11 states and 404 voting restriction bills have been introduced in 48 states. Of those, 90% were created by only or mostly Republicans.

Each yellow state is where conservative lawmakers filed voter restriction laws in 2021

This all came to a head when, following 2020 redistricting, a voting map drawn by the North Carolina state legislature was rejected because of partisan gerrymandering by the North Carolina Supreme Court. 

The originally drawn North Carolina districts would have given Republicans solid control of the state, despite North Carolina being considered an election toss-up

In response, the state legislature under Speaker Tim Moore sued, arguing that only the legislature had the right to manage elections, and the case was brought before the Supreme Court.

Setting the Stakes for the Suit

The stakes of the lawsuit were high. As noted, a wave of state legislatures were inundating their election processes with new voting laws that also served to elevate their power. While the ruling would apply to all state legislatures equally, the results would have a profound impact along party lines:

Cut and dry, if the Supreme Court agreed with Moore, Democrats Would Lose:

Considering that 58% of Biden voters casted their votes by absentee or mail-in ballot compared to only 32% of Trump voters, a ruling in favor of Moore would have a disproportionate impact on Democratic voters. Voting restrictions, which apply less to Republicans, who traditionally vote in person, could be passed by state legislatures and thus muzzle more Democratic voices.

In addition, the majority of state legislatures are controlled by Republicans. Out of 98 partisan legislative chambers, Republicans control 57 and Democrats possess 41. Of the states where both the upper and lower chamber, as well as the governor, are occupied by the same party, 22 are Republican majority while only 17 are Democratic. Thus, any ruling giving state legislatures unfettered power would give Republicans the opportunity to push voter restrictions nationwide, regardless of other institutions like courts.

The Ruling

The Supreme Court ultimately ruled that the North Carolina state legislature did not have the right to use their self-approved election map over the objections from the state Supreme Court. Thus, the Court rejected the “independent state legislature theory,” reinforcing that elections throughout the nation are not solely in the hands of state legislatures. The majority opinion, written by Justice John Roberts, was supported by the court’s three liberal justices as well as Justice Brett Kavanaugh and Amy Coney Barrett. 

Justices Thomas, Gorsuch, and Alito dissented, with Thomas writing the dissenting opinion

In the court’s decision, Roberts asserted that “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” soundly defeating claims by conservative legislatures that others have no right to police how they choose to run elections. While Roberts did not delve into what exact oversight state legislatures can be subjected to, he did set a standard that legislatures are not entitled to free rein.

Meanwhile, the three dissenters started off by asserting that that the decision was already void as another ruling in North Carolina reversed the decision that landed the case in the Supreme Court. The justices then claimed concern that the ruling would permit frivolous lawsuits to overturn fair elections. 

The Impact

In just a little over a year, Americans will return to the ballot boxes to vote for our 47th President. With the ruling from the Supreme Court, state legislatures can be checked for actions they take in running not only the upcoming presidential election, but elections in the future.

While the ruling leaves plenty of room for discussion and more suits, especially considering disagreement on what “ordinary judicial review” by courts refers to, state legislatures can no longer hide behind the “independent state legislature theory” when justifying their election laws. 

Conservatives will most likely continue to push for greater control of elections by state legislatures. Adam Kincaid, leader of a GOP redistricting group, signaled future lawsuits to pressure courts into solidifying what specific powers they possess in regulating elections. Thus, the decision cannot be seen as the end-all-be-all for election challenges, nor as an end to conservative attempts to rewrite election laws. 

Already this year, 18 bills in 10 different states, including swing states like Georgia and Florida, have been passed to add new electoral restrictions, angering Democrats. The Supreme Court decision has not yet quelled any of this fighting, but it has firmly stated that state legislatures have the power to be checked when stepping out of line.

Regardless of the decision’s fallout, we all have an important decision to make in 2024 and beyond. But while we head to the polls, we should look towards the Supreme Court, and the decisions it makes in deciding how we cast our votes.

10 Supreme Suggestions for Further Reading

Basic further explanation of case: https://www.brennancenter.org/our-work/research-reports/moore-v-harper-explained

How the case will specifically impact future elections: https://www.americanprogress.org/article/9-ways-the-supreme-courts-decision-in-moore-v-harper-could-harm-democracy/

An article written before the decision explaining its significance: https://www.propublica.org/article/moore-v-harper-explained-scotus-elections

Decision commentary by conservative newspaper (Fox News): https://www.foxnews.com/politics/justices-rule-state-lawmakers-exclusive-control-elections-key-decision

Decision commentary by ACLU, supporting the decision before it was made: https://www.aclu.org/news/voting-rights/explaining-moore-v-harper-the-supreme-court-case-that-could-upend-democracy

Article warning of potential repercussions, as told by conservatives: https://www.americanprogress.org/article/prominent-conservatives-warn-about-dangerous-potential-repercussions-of-moore-v-harper/

White House response in support of the decision:https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/27/statement-from-vice-president-kamala-harris-on-the-supreme-court-ruling-in-moore-v-harper/#:~:text=Today’s%20decision%20preserves%20state%20courts,our%20communities%20and%20our%20nation.

Important Supreme Court cases to watch following decision: https://www.americanbar.org/news/abanews/publications/youraba/2018/november-2018/5-supreme-court-cases-to-watch-during-this-term/

A discussion on the modern Supreme Court and how its decisions apply to our lives: https://www.acslaw.org/the-future-of-the-supreme-court/

Explaining the relevance of the “independent state legislature” theory: https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained