“[T]he biggest threat to US democracy since January 6.”1 “[A] theory that could upend elections.”2 “It’s Hard to Overstate the Danger of the Voting Case the Supreme Court Just Agreed to Hear.”3 These headlines highlight that many feared the Court would adopt the “Independent State Legislature Theory” (ISLT) — a theory that, in its maximalist form, would let state legislatures write congressional election rules without regard for state constitutional limits and with no role for state judicial review.4
These fears now seem mostly moot. Last Term, in Moore v. Harper,5 the Supreme Court held that state courts may exercise “ordinary judicial review”6 of state rules governing congressional elections.7 This ruling rejected the maximalist ISLT, preserving state courts’ power to strike down election laws — such as partisan gerrymanders or schemes to skew ballot counting — if they violate the state’s constitution. One once-fearful commentator now sees Moore as a “resounding and reverberating victory for American democracy.”8 But the case is not so simple. While Moore stops some threats to fair elections, it asserts a muscular vision of federal judicial power that raises new democratic difficulties.
The Constitution’s Elections Clause states that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.”9 Maximalist ISLT proponents take “Legislature” to mean that the legislature alone has the power to write these election rules — with no role for state constitutions or state courts enforcing them.10 This simple reading has serious stakes.11 Under the ISLT, state courts would be precluded from invalidating congressional gerrymanders,12 and state ballot initiatives could not grant redistricting authority to independent commissions.13 More extremely, state legislatures might reject how courts count ballots14 or unmoor election results from the popular vote15 — potentially subverting the will of the voters.
In 2021, the North Carolina legislature began the ISLT’s winding path to the Supreme Court by drawing new congressional districts under its Elections Clause authority.16 Voting groups sued, alleging the Republican-passed maps were a partisan gerrymander violating the state constitution.17 The Wake County Superior Court denied plaintiffs’ claims: while the map was “carefully designed to maximize Republican advantage,” the court held partisan gerrymandering nonjusticiable under the state’s constitution.18
The North Carolina Supreme Court reversed in Harper v. Hall19 (Harper I). Writing for the majority, Justice Hudson20 held that partisan gerrymandering was both justiciable and unconstitutional, violating the state constitution’s free speech, free assembly, equal protection, and free elections clauses.21 The majority also rejected defendants’ ISLT argument — that the Elections Clause leaves the content of the congressional maps solely to the legislature — finding the theory “repugnant to the sovereignty of states . . . and the independence of state courts.”22 Because the majority found the 2021 map was an unconstitutional gerrymander, it enjoined the map and remanded to the trial court to oversee the legislature’s redrawing of the maps.23
After the legislature adopted a new congressional map in February 2022, the Wake County Superior Court found the map still violated Harper I and implemented its own interim plan to ensure lawful districts for the 2022 elections.24 The legislature appealed to the state supreme court; the United States Supreme Court also granted certiorari on whether the Elections Clause allows the state court to review the legislature’s map.25 In the meantime, the North Carolina Supreme Court in Harper v. Hall26 (Harper II) affirmed that the remedial map was unconstitutional and upheld the interim plan.27
However, after the 2022 elections, the state supreme court flipped from a 4–3 Democratic majority to a 5–2 Republican one.28 In early 2023, that court agreed to rehear Harper.29 In the third life of Harper v. Hall30 (Harper III), Justice Newby, writing for the majority, “overruled” Harper I, finding partisan gerrymandering nonjusticiable under the North Carolina Constitution; the court then “withdr[ew]” Harper II, leaving it to the legislature — without reinstating the plans struck down in Harper I — to draw new congressional maps, which it could now do free of a state constitutional prohibition on partisan gerrymandering.31
The United States Supreme Court then affirmed Harper I’s ISLT judgment in Moore v. Harper.32 Writing for the majority, Chief Justice Roberts33 held that the Elections Clause does not exempt congressional maps from the “ordinary exercise of state judicial review” under state constitutions.34
The Court first held that even though the North Carolina Supreme Court had overruled the decision giving rise to Moore, the case was not moot. While Harper III overruled Harper I’s reasoning, it did not prevent state courts from reviewing maps passed pursuant to the Elections Clause or disturb Harper I’s injunction against the 2021 plan.35 So, since Harper I’s final judgment that the Elections Clause allowed state courts to review congressional maps remained intact, the Court could still grant relief (by adopting ISLT) — making the issue not moot.36
The Court then addressed the merits. Chief Justice Roberts began by identifying a “fundamental principle” of our legal system: that courts have a “duty” to review the constitutionality of laws — including state courts enforcing state constitutions.37 To the Court, the question was whether the Elections Clause “carves out an exception to this basic principle.”38 It answered no: state legislatures remain constrained by the “ordinary exercise of state judicial review.”39
First, the Court concluded that state legislatures are constrained by state constitutions. Focusing on precedent, the majority noted that state redistricting legislation has long operated within state constitutional requirements “with respect to the enactment of laws,” including judicial review, gubernatorial veto, and popular initiative.40 Confirming recent precedent from Arizona State Legislature v. Arizona Independent Redistricting Commission,41 the Court held that any entity tasked with redistricting “remained subject to constraints set forth in the State Constitution.”42 While the Elections Clause authorizes state legislatures to regulate congressional elections, laws made under this authority are subject to the same state constitutional constraints that regulate all state lawmaking.43
Then, the Court rejected defendants’ argument that state constitutions could impose procedural constraints on legislatures (such as gubernatorial vetoes), but not substantive constraints (such as prohibitions on gerrymandering).44 The Court’s precedents drew no distinction between substance and procedure; instead, they held broadly that lawmaking must meet all requirements set out by state constitutions.45 Moreover, the majority saw no principled way to distinguish substance from procedure, as “[t]he line between procedural and substantive law is hazy.”46
Finally, the Court concluded that Founding-era history proved that legislatures can be limited by state constitutions in regulating congressional elections.47 Delaware and Maryland, for example, had constitutional provisions regulating federal elections, demonstrating that state legislatures lacked sole control.48 And other states mandated that federal elections be “by ballot,” again limiting legislatures’ regulatory authority.49 Since the Framers knew of these provisions, the Court assumed that the Framers did not intend for the Elections Clause to silently render them null.50
The Court rejected the absolutist ISLT claim that state legislatures are fully exempt from state constitutions when regulating congressional elections. Still, the Court found the Elections Clause places some limits on state court review.51 Despite a “general rule” of accepting state court interpretations of state law, the Supreme Court claimed “an obligation to ensure that state court interpretations of that law do not evade federal law.”52 In the Elections Clause context, that means federal courts must ensure state courts do not “transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”53 The Court did not, however, adopt an exact test for when state courts exceed Elections Clause authority, as it found the issues “complex and context specific.”54 The Court then declined to decide whether Harper I “transgress[ed] the ordinary bounds of judicial review” in striking down the map since the parties had not briefed the issue.55
Justice Kavanaugh wrote a solo concurrence to discuss how he would determine whether a state court had transgressed the ordinary exercise of judicial review.56 In general, he believed federal courts should “defer” but not “abdicat[e]” their reviewing role.57 In particular, he advocated for the approach outlined in Chief Justice Rehnquist’s Bush v. Gore58 concurrence — asking “whether the state court ‘impermissibly distorted’ state law ‘beyond what a fair reading required.’”59 He also argued that Moore’s “transgress” standard applies to state court interpretations of constitutions and statutes, an issue the majority did not clearly resolve.60 He then clarified his view that assessing whether the state court distorted state law requires comparing the decision to preexisting state law, an issue the majority did not explicitly address.61
Justice Thomas dissented.62 He saw Moore as a “straightforward case of mootness” because the Elections Clause holding “no longer makes any difference” to the underlying case63: Harper III resolved which maps governed upcoming elections, leaving no relief for the Court to grant.64 On the merits, Justice Thomas endorsed a stronger ISLT. To him, since states’ power over federal elections comes from the U.S. Constitution, and since “Legislature” means the “lawmaking power” under the state constitution, a constitution may define that lawmaking power to include judicial review but cannot prescribe the substantive content of laws dictated under it.65
Justice Thomas then worried that Moore “portends serious troubles ahead for the Judiciary.”66 By extending federal court supervision into state constitutional (not just statutory) law, and by making federal courts define “ordinary [state] judicial review,” Moore will “federaliz[e]” state constitutions, “swell[ing] federal-court dockets with state constitutional questions”67 in “politically acrimonious and fast-moving” controversies.68 This role could leave the “winners of federal elections [to] be decided by a federal court’s expedited judgment.”69
Moore’s rejection of the maximalist ISLT thwarted some threats to democracy.70 By preserving state judicial review, Moore lets courts stop legislatures from unconstitutionally gerrymandering maps or interfering in election outcomes.71 In reaching that result, however, Moore expanded federal courts’ authority — making a subtle power grab that gives an arguably antidemocratic federal judiciary a troubling new role in federal elections.
Moore’s new standard expands federal courts’ authority by giving them final say over state election law.72 The Court began by lauding a Marbury-like “fundamental principle” of state judicial review73 and fully rejecting the ISLT invention of unreviewable legislatures.74 Then the Court hedged, adopting an ISLT-lite standard that lets federal courts determine when state courts “transgress the ordinary bounds of judicial review.”75 The majority framed this as simply applying federal courts’ “duty to safeguard” the Federal Constitution,76 in line with “other areas” in which federal courts claim ultimate supervisory authority over state law.77 But none of those areas have anything to do with the Elections Clause — which the Court had just shown preserves state courts’ role as ultimate arbiters of their own constitutions — making Moore a novel expansion of federal judicial power. Moreover, for support, Moore turned to Bush v. Gore,78 staking the federal judiciary’s new role on a self-avowedly nonprecedential opinion79 critiqued for flouting federalism.80 While rejecting the ISLT appears to protect state courts, Moore’s new standard subjugates them beneath new federal court powers.
Adding this layer of review could elevate federal courts’ influence in election disputes. Because the Court chose not to define its “transgressing” standard, state court litigants have an incentive to add Elections Clause claims atop state law challenges, in case a new theory sticks.81 And if Justice Kavanaugh is right that Moore applies to constitutional and statutory challenges, federal courts may have to decide debates over scores of state judicial and administrative interpretations of election laws.82 While most federal claims may be easily dismissed,83 the recent explosion in election litigation84 and the mountain of newly passed voting laws85 could give federal courts a role in countless new cases.86 In these cases, Bush-esque interventions could loom, leaving federal courts to decide the election rules — and thus, perhaps, the election results — in contests countrywide.87
Together, the Court’s defense of judicial review and expansion of federal court authority88 add antidemocratic potential atop Moore’s defense of democracy. Recently, a growing group of scholars have assailed federal courts as unelected and unaccountable — and thus undemocratic.89 On this view, Moore is unavoidably troubling, as it could leave judges who are disconnected from the democratic process in charge of that process across each of the fifty states. Other democracy advocates do not call courts inherently undemocratic but frequently criticize the Roberts Court for working against voters.90 On this view, Moore is still worrisome, as it puts an increasingly conservative Court — one that has drastically narrowed the Voting Rights Act, enabled partisan gerrymandering, and invited increased campaign spending91 — in position to nudge elections toward the Justices’ partisan preferences.92 All these advocates would oppose the gerrymandering and election subversion that Moore’s rejection of a maximalist ISLT stopped. But the uncertain and potentially expansive new role for the federal judiciary creates more democratic tension than the initial reaction to the case suggests.93 And Moore’s popular reception might legitimate future judicial intervention in ways that undercut support for reclaiming democratic authority from courts.94
More broadly, the reality that Moore’s “win” relied on an antidemocratic Court to stop antidemocratic legislatures highlights the distorted position democracy defenders face: putting any branch in charge of election rules carries democratic risks. Those who laud legislatures95 must contend with how gerrymandered legislatures are themselves countermajoritarian96 — as North Carolina’s next map could give Republicans 71% of congressional seats if they receive around 50% of the votes.97 Those who see state courts as majoritarian98 must face how elected judges can be captured and impinge on majority-supported rights — as Harper III’s partisan reversal99 (and the North Carolina Supreme Court’s history of dark-money influence100) illustrates. Those who hope federal courts can unblock the political process101 must face the ways federal supremacy can cabin states’ ability to pursue creative voting rights policies beyond federal protections102 or preempt debates over what makes their democracy fair103 — as Moore’s looming Bush-like interventions portend.
These complications illustrate how Moore can be both a victory for American democracy and a threat to it. In today’s “new countermajoritarian difficulty”104 — where structural barriers to fair representation lurk everywhere — defending democracy is like a game of whack-a-mole: stopping a democratic threat somewhere raises a new one elsewhere. The mole Moore targeted — legislatures’ federal election interference — makes immediate sense given the risk of mischief in 2024.105 But the mole Moore unearthed — greater federal judicial power in elections — leaves democracy’s defenders with more work to do.