The Supreme Court’s session ended on Friday, June 30th, and as expected, they handed down some real dizzying decisions. There are four of significance, and I will be discussing them over four days in separate posts, because there is simply too much material to try to condense into one post.
The four cases in question are:
- Harper v. Moore
- Students for Fair Admission v. Harvard College
- Biden v. Nebraska
- 303 Creative v. Elenis
Three out of these four cases were very disappointing for anybody on the progressive side of the political spectrum. The only one that wasn’t was Harper v. Moore. Of course, that case was a complete wackadoodle case, one that never should have been before the courts to begin with.
But let’s celebrate the few victories that we can.
In brief, Harper v. Moore was a test of the independent state legislature theory, which is an absurd theory, proposing that only state legislatures can regulate elections, including federal elections. (Note that most elections involve joint ballots, where both state and federal candidates are on the ballot.) The theory proposes that:
- Governor’s cannot veto provisions related to elections;
- State courts cannot interpret provisions related to elections;
- Only state legislatures can regulate provisions related to elections, without any checks or balances.
The practical impact of all this would be that state legislatures could gerrymander the hell out of congressional districts and enact all kinds of discriminatory provisions that would deny many of their own citizens the vote.
The theory is grounded in Article I, Section 4, Clause 1 (The Elections Clause) of the United States Constitution, where it is written:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The problem with this language — and this is often true of language in the U.S. Constitution — is that it is insufficiently specific. Any reasonable interpretation of the language would simply conclude that state legislatures can decide things like where elections are to be held, the hours that the polls will be open, and issues like absentee voting, subject to the same restraints as any other legislation. Namely:
- The Governor can veto the legislation;
- The Legislature can override a Gubernatorial veto;
- State courts can decide whether the legislation violates any State Constitution;
- Federal courts can decide whether the legislation violates any provisions of the United States Constitution, or any preeminent federal law.
Nevertheless, this case — which is essentially a dispute about whether the North Carolina legislature had drawn impermissible state and congressional district maps — still found its way to the Supreme Court. Before it found its way up there:
- In 2022 the Supreme Court of North Carolina found that the most recently drawn Congressional maps were unconstitutionally gerrymandered.
- In the November 2022 elections, Republicans gained a 5-2 majority on the Supreme Court of North Carolina.
- In February 2023 the court agreed to reconsider the prior court’s ruling.
- In April 2023 the court reversed the previous ruling and declared the maps constitutional.
So, in effect, by the time this case was argued before the United States Supreme Court, it was moot. It never should have been decided.
But, as it happens, the Supreme Court did decide it, and for once, correctly. Even so, Justices Thomas, Alito and Gorsuch dissented, albeit mostly on grounds related to standing. But Thomas and Alito in particular had previously been on record endorsing the independent state legislature theory.
So, we were all fearing the worst.
But that’s about it as to good news. The next three cases did not have a happy ending.