On Wednesday, following oral arguments in the massive Moore v. Harper Supreme Court case that could dramatically change how U.S. elections are conducted, voting rights attorney Marc Elias analyzed a crucial "mistake" made by the Republican-aligned lawyer on his "Democracy Docket" media platform that might cost them the case.
The case, centering on the decision by the North Carolina Supreme Court to strike down a gerrymandered congressional map, seeks to have the Supreme Court adopt "independent state legislature theory" — a radical proposal that state legislatures have unreviewable power to set election law and cannot be overruled by state courts, even when they violate state constitutions. But, wrote Elias, the Republican-aligned counsel went too far, and failed to read the room in the face of skepticism from even conservative justices.
"One of the big questions I had before this argument was how broadly the Moore lawyer would argue the case. And he went very broad, arguing from the start that 'there can’t be a limit on the [state legislature’s] power' to regulate congressional elections 'because it’s a federal function.' In practice, that would mean that state courts could not strike down state laws pertaining to federal elections for violating their state constitutions," wrote Elias. "In retrospect, this decision by the Moore lawyer to take an absolutist position against state court review may well prove to be a mistake."
"From the outset, Chief Justice John Roberts — himself a potential swing vote — questioned how the Moore lawyer’s position could be squared with the Court’s prior case law allowing state courts to review election laws. Roberts also pointed to the 1932 U.S. Supreme Court case, Smiley v. Holm, which held that governors may veto legislative enactments and was referenced many times throughout oral argument," wrote Elias. "Significantly, Justices Brett Kavanaugh and Amy Coney Barrett expressed similar skepticism. Even Justice Clarence Thomas, usually a stalwart conservative, asked tough questions of Moore’s lawyer. Indeed, one of the most striking takeaways from the argument was how little even the most conservative justices came to the Moore lawyer’s defense." Even Justice Samuel Alito had doubts, argued Elias, with only Justice Neil Gorsuch appearing to embrace the Moore lawyer completely.
It is likely then, wrote Elias, that if the court adopts independent state legislature theory at all, it will be a highly narrow version — and one brokered with lawyers from the other side.
"If the Court’s ultimate opinion follows the trajectory of the argument, I would expect future voting cases to face additional steps in the legal process but little more," concluded Elias. "State court election law decisions would be subject to an additional question: Did the opinion fairly reflect state law and the state constitution? While this would create new vehicles to attack pro-democracy court decisions, in practice it would more likely lead to longer, more carefully written state court decisions rather than change the outcome of many cases."