Moore v. Harper, Evasion, and the Ordinary Bounds of Judicial Review

Abstract

In Moore v. Harper, the Supreme Court confronted head on for the first time the so-called independent state legislature theory (ISLT), which posits that state legislatures have exclusive authority to enact laws and regulations governing federal elections and that those laws are not subject to state court judicial review pursuant to state constitutions. While the Supreme Court resoundingly rejected the most robust version of ISLT in Moore, commentators have argued that language in that opinion opened a dangerous door to federal supervision of state election law. This Article argues that those claims are wrong. Under Moore, federal court review is only appropriate to prevent state courts from evading federal interests, and as Moore itself made clear, the federally-protected interest under the Elections Clause is the prohibition of state courts "transgress[ing] the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections." Looking to the Court's reasoning in Moore, as well as constitutional history and fundamental principles of state sovereignty, this Article argues that the ordinary bounds of judicial review are exceptionally broad, and there will virtually never be a case in which a state court transgresses those bounds in a way that amounts to an arrogation of power. The upshot, then, is that Moore did more than reject the essential premises of ISLT; it also made it extremely unlikely that any future ISLT claims will succeed.

Keywords: independent state legislature theory, state constitutions, voting rights, federalism, separation of powers, federal courts, Elections Clause, Elector Clause, Moore v. Harper, judicial review, state courts, evasion