The Supreme Court, in a case that cut to constitutional bedrock, on Tuesday defended the role of the federal courts in reviewing how states conduct their elections. Coming weeks after the Nine shored up a provision of the Voting Rights Act, Moore v. Harper suggests that a precedent-defying court has not forsaken the ballast of stare decisis. 

At the core, this was a case fought over the Constitution’s Elections Clause. It ordains that the “times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.” The Tar Heel State argued that the elections clause denies judicial review of state lawmakers. That is known as the independent state legislature theory.  

Chief Justice Roberts, writing for a 6-to-3 court, rejected the idea, roundly rebuffing the assertion that it is legislatures alone that the Constitution tasks with running elections. State jurists and the constitutions they gloss, the high court ruled, have a role to play in scrutinizing, and possibly staying, lawmakers’ hands in electoral matters.

While the seeds of the independent state legislature theory harken back to the 19th century, its tenets were revived before the high court by lawyers for President Bush during Bush v. Gore, the case that tipped the electoral scales to the Texas scion. It has of late garnered support from a coterie of lawyers gathered by President Trump to challenge the results of the 2020 election.      

Moore emerged from a challenge mounted by a constellation of advocacy groups to North Carolina’s congressional district map. They alleged it was unlawfully partisan. The state supreme court  ruled that the plan was drawn crosswise with that state constitution’s promise that “all elections shall be free” and that document’s guarantees of due process, freedom of assembly, and freedom of speech.

North Carolina’s legislature drew a new set of maps, but those were also rejected by the state justices, who then turned to the work of a special master to craft its cartographies. Republicans in the house — Tim Moore, who gives the case its name, is the speaker — challenged that decision in court, but also at the ballot box. 

They succeeded in the latter arena, as a new batch of justices were elected to North Carolina’s supreme court. They promptly vacated the holding of their predecessors and reinstated the maps that had been discarded. This changing of the guard, though, happened after an emergency appeal had already been lodged at the high court, raising the specter of mootness.  

The justices declined to take that off ramp, holding that the North Carolina supreme court did not overrule itself completely, and that enough of its initial ruling abided to merit Supreme Court review and meet the requirement that the justices hear only “Cases” and “Controversies,” or live disputes. “Dismissing this case as moot,” the chief warns, “would foreclose the one path to full relief” available to defendants. 

Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito dissented on this point, calling it a “straightforward case of mootness” because the issue considered by the court “no longer makes any difference to this case — whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same.”

The majority frames the question on the merits as “whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law.” To frame an answer, the chief looks to one of the original charters of judicial review, Marbury v. Madison, which held that it “is emphatically the province and duty of the judicial department to say what the law is.”

The chief’s ken stretches further back than that — Marbury did not “fashion this concept” of judicial review “out of whole clothe.” Chief Justice Roberts approvingly cites the historian Gordon Wood’s observation that “before the Constitutional Convention convened in the summer of 1787, a number of state courts had already moved in isolated but important cases to impose restraints on what the legislatures were enacting as law.”

These state court decisions, the court teaches, “provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review. This check on the prerogatives of solons stretches far back before the Founding to the “historical rights of the English.” In 78 Federalist, Hamilton writes that “courts of justice” have the “duty” to declare “all acts contrary to the manifest tenor of the Constitution void.”

“In the years immediately following ratification,” Chief Justice Roberts writes, “courts grew assured of their power to void laws incompatible with constitutional provisions,” with Chief Justice Marshall referring to judicial review as “one of the fundamental principles of our society.”    

Having invoked the ghosts of Hamilton, Marshall, and Madison, the Roberts court rules that the Elections Clause, even as it empowers state lawmakers to set the rules of the road for elections, “does not insulate state legislatures from the ordinary constraints imposed by state law.” In other words, those legislatures are bound by their state courts, not just federal ones. 

Clarifying the choreography between state legislatures, state constitutions, and state courts, the Supreme Court explains that “when legislatures make laws, they are bound by the provisions of the very documents that give them life” — state constitutions, and the courts that interpret them. 

Chief Justice Roberts turns to the constitutional debates from July 23, 1787, to quote the Virginian George Mason to the effect that legislators are “the mere creatures of the State Constitutions, and cannot be greater than their creators.” A case eight years later out of Pennsylvania asserted that legislators “owe their existence to the Constitution.”   

The teaching of these precedents, for the court, is that the “legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.” When state lawmakers have two masters: Their own charters, and the federal one. 

Even though Justice Thomas would have found Moore to be moot, his dissent meditates on the merits as well. He avers that the “power to prescribe times, places, and manners for congressional elections is an original power of the people of each State.” Justice Thomas, longest-serving sage on the bench, “would hesitate long before committing” to a seismic holding in the form of “an advisory opinion in a moot case.”