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11/08/2022

David Gans on Originalism and Moore v. Harper
Michael Ramsey

At Slate, David Gans (Constitutional Accountability Center): Originalism Demands Only One Answer in the Supreme Court’s Big Elections Case.  From the introduction:

Moore v. Harper, which will be argued before the Supreme Court on Dec. 7, has been called one of the most important democracy cases ever to come before the court. It is also a defining moment for the many justices on the court who profess to be originalists. Moore raises the question of whether the court’s conservative wing will sanction an anti-originalist power grab that would eviscerate our ability to hold free and fair elections.

Moore involves the so-called independent state legislature theory—a sweeping and radical effort to prevent state courts from protecting voting rights enshrined in their own state constitutions. In Moore, the North Carolina Supreme Court held that North Carolina’s congressional maps contained a partisan gerrymander that violated the free elections clause of the North Carolina Constitution, a provision that has been a fixture of that document since 1776. The North Carolina legislature, however, insists that because the U.S. Constitution gives state legislatures the authority to regulate the time, place, and manner of congressional elections, all substantive state constitutional checks and balances are null and void. This is an astounding—and astoundingly wrong—claim that would annul state constitutional voting and equality protections added to state charters over the course of two centuries, do violence to principles of federalism, and throw state electoral systems into disarray.

Further, the ISLT is an abomination to originalism, and for genuinely originalist justices, Moore should be an easy case. First of all, American constitutionalism began with state constitutions. Judicial review by state courts to enforce state constitutional limits on the power of the legislature is older than the U.S. Constitution itself. Well before the delegates met in Philadelphia to draft the Constitution, state courts put into practice the notion that legislatures are creatures of state constitutions and bound to observe their limits, not independent of them. In fact, state judicial review provided the model for federal judicial review. As Alexander Hamilton’s classic defense of judicial review made explicit, “the right of the courts to pronounce legislative acts void, because [they are] contrary to the Constitution” has been “of great importance in all the American constitutions.” ...

I think this is basically right, and I doubt the Court will accept the absolute version of ISLT advocated by the state legislature.  But the essay here fails to engage with two intermediate positions.  First, it acknowledges Justice Alito's comment at an earlier stage of the litigation that "'there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.' The state court’s ruling, Alito argued, wasn’t a genuine act of constitutional interpretation, but had all the 'hallmarks of legislation.'"  But the essay doesn't explain why this position is wrong.  Second, the essay mentions the Atlantic essay by William Baude and Michael McConnell, noted on this blog, but does not discuss the intermediate position they advocate.  Either of these intermediate views would result in the state prevailing in Moore, without the Court embracing the absolutist version of ISLT.

UPDATE/RELATED: Rosemarie Zagarri (George Mason University-History Dept.) has posted The Historian's Case Against the Independent State Legislature Theory (Boston College Law Review, March 2023 (forthcoming)) (31 pages) on SSRN.  Here is the abstract:

This Essay explores historical evidence from the Founding Era underlying Art. 1, Sec. 4 of the US Constitution (and related clauses) that delegate certain powers to state legislatures in making federal election laws. The article shows that far from empowering the state legislatures, the US Constitution was meant to curb state legislative supremacy and confirm the subordination of state legislatures to the checks and balances embedded in the individual state constitutions. It shows that the Independent State Legislature Theory is contrary to both the theory of constitutional government and the practices of state legislatures in making federal election laws.