The Supreme Court published its ruling in Moore v Harper today, snuffing out the Federalist Society weed-induced fantasy of the "independent state legislature theory" would remain just that—a fantasy:
[A]lthough the Constitution gives state legislatures the power to regulate federal elections, state courts can supervise the legislature’s exercise of that power. By a vote of 6-3, the court rejected the so-called “independent state legislature theory,” holding that the North Carolina Supreme Court did not violate the Constitution when it set aside a congressional map adopted by the state’s legislature.
In 2019, in Rucho v. Common Cause, the Supreme Court ruled that federal courts cannot consider claims of partisan gerrymandering. But the 5-4 decision by Chief Justice John Roberts noted that states could still address partisan gerrymandering in their own laws and constitutions. In February 2022, the North Carolina Supreme Court (which at the time had a 4-3 Democratic majority) ruled that the new map violated a provision in the state constitution guaranteeing free elections. The state supreme court barred the state from using the new map in the 2022 elections, and the trial court later adopted a new map, drawn by Republicans and Democrats split the state’s congressional seats 7-7.
Republican legislators came to the U.S. Supreme Court last year, challenging the state supreme court’s decision. They argued that when it set aside the legislature’s congressional map, the state court violated the “independent state legislature” theory. That theory, which the Supreme Court has never endorsed in a majority opinion, rests on two provisions of the Constitution. In Moore, the legislators point to one of those provisions, Article I’s elections clause, which provides that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Article II’s electors clause provides that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.” These provisions, the theory’s proponents contend, mean that state courts lack the power to supervise how state legislatures run elections for Congress or the president – including, as in this case, the power to set aside congressional powers.
Notably, Justices Amy Comey Barrett (R) and Brett Kavanaugh (R), themselves test-tube babies of the Federalist Society judiciary pipeline, signed onto the opinion Chief Justice John Roberts (R) wrote, along with the non-partisan Justices Katanji Brown Jackson, Sonia Sotomayor, and Elena Kagan.
Kavanaugh also concurred with Roberts' opinion in Allen v Milligan, sending Alabama's blatantly racist map back to Montgomery, and Monday in a similar Louisiana case.
I don't know whether Justices Gorsuch (R), Thomas (R$), and Alito (R$) dissenting from Moore surprises me or not. Those three have always believed the Republican Party is the only legitimate ruler of the United States, signing on to a series of ridiculous arguments to advance the Cause. I'm sure the Federalist Society expected Kavanaugh and Comey Barrett to follow behind them. Maybe Kavanaugh is turning Brennan?
Ha. No. But at least he hasn't chased the right-wingers over the ledge. Yet.