Document Type
Article
Abstract
The big news about the Independent State Legislature Doctrine (Doctrine) is that, despite the expectations of most observers, including me, the Supreme Court did not fully adopt the Doctrine in Moore v. Harper. The majority opinion, written by Chief Justice Roberts, and joined by Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, held that state courts may apply their state constitutions to state legislation affecting federal elections in the course of what the opinion called the “ordinary exercise of state judicial review.”
It is equally clear, however, that the Court in Moore federalized state constitutional decision-making in the context of federal elections to an extent. Thus, the Doctrine, though wounded and diminished, is not dead. The state of the Doctrine after Moore, and the context and nature of its future use, are the subjects of this paper.
The political stakes were high in Moore. If the Doctrine had been adopted in full, political gerrymandering in congressional districting, already non-justiciable in federal court, would have been beyond the reach of state constitutional review as well. In addition, other kinds of state legislative initiatives concerning voting, from voter ID laws to ballot counting laws, would have been beyond the reach of state judicial review. It is fair to say that if the Doctrine had been adopted in full, the potential for partisan abuse by state legislatures in federal elections would have been increased.
On the other hand, had the Doctrine been rejected in full, there would have been no restriction on the potential partisan abuses by state court judges in federal election decision-making short of extraordinary measures, such as impeachment or jurisdiction restrictions imposed by state legislatures. Had the Doctrine been rejected in full, the potential for state constitutional crises would have been increased.
Perhaps by recognizing and adopting the Doctrine in part, the Court in Moore got the matter just right. That cannot be asserted with confidence, however, because, as this paper demonstrates below, Moore ends up as a skeleton-like hint of what federal court review of state court decision-making in the context of federal elections may look like in the future. Hopefully, this paper fills in that skeleton as fully as possible.
Part I of this article examines the Doctrine. Part II explores the way in which the Doctrine, though not fully adopted in Moore, still constrains state court decision-making in the context of federal elections. Part III analyzes why the Doctrine was not adopted fully in Moore. Part IV examines what the federal issue is that remains in state federal election cases. Part V explains by what standard those cases are to be decided. And, perhaps most importantly, Part VI examines which courts will be deciding these issues.
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Repository Citation
Bruce Ledewitz, Moore News about the Independent State Legislature Doctrine, 62 Duq. L. Rev. 327 (2024).