James Cleith Phillips (UC Berkeley School of Law; Schaerr Jaffe) has posted There’s More to Moore on SSRN. Here is the abstract:
Sometimes the Supreme Court hides things in plain sight.
Despite being one of the most highly anticipated election law cases in years, for many Moore v. Harper was a bust. That was for two reasons. First, the Supreme Court left unanswered the main question of the case: “whether the [state court] strayed beyond the limits derived from the Elections Clause.” It did so because “[t]he legislative defendants did not meaningfully present the issue in their petition for certiorari or in their briefing, nor did they press the matter at oral argument.” Thus, the Court’s setting the line where “state courts . . . transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections” would have to wait for a later day. Court observers thus lamented that Moore punted an issue that needed to be decided. And since Moore, parties have peppered the Court with emergency applications and petitions for certiorari seeking an answer to that unanswered question, and lower federal courts and state courts have struggled in this void.
Moore was also a disappointment for many originalists, both on and off the Court, as there had been hope that a majority would have turned to the original meaning of the Elections Clause and held that a state legislature is the only authorized actor at the state level to redistrict. But the majority rejected an extreme version of that theory, holding that “[s]tate courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause” so long as state courts do not “so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.” Justice Thomas, joined by Justice Gorsuch, lamented that the majority’s “apparent rationale[] . . . is untenable.”
Yet, a close reading of Moore reveals that there is more direction to parties and courts than initially thought, namely a clear-line restriction to prevent state courts from exercising “free rein” in the Elections Clause context: such courts must be interpreting state constitutional law rather than just any state law. And Moore left open the door for a limited role for originalism: Given that the Court refused to adopt a test for what it means for state courts to transgress “ordinary judicial review” and arrogate redistricting power to themselves, the Court, and until then, lower courts, may adopt an originalist or history-and-tradition test.
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