Tomorrow, the Court will hear oral arguments in the Moore case, which involves the authority of the North Carolina Supreme Court to interpret state constitution provisions relating to gerrymandering. Republicans in the state legislature are relying on the “independent state legislature” argument to make the case that the NCSC has no power to limit their ability to gerrymander. The Court will have to disregard language in two of its fairly recent decisions–one regarding the federal courts and gerrymanders, and the other involving nonpartisan state legislative boundary commissions–if it wants to side with the NC Republicans. In addition, a decision in favor of the NC Republicans could ultimately cost the GOP seats in the House, as legislators in states like New York would have the same right to gerrymander that they do. As a result, I think even this reactionary Court is unlikely to side with the NC Republicans. But the issues in the case go far beyond redistricting.
Many commentators–including prominent conservative legal scholars–believe that this case could have a seriously destabilizing impact on presidential elections. Others disagree and argue that the federal courts can and will serve as an adequate backstop to protect the integrity of our system even if the Court accepts the “independent state legislature” doctrine. Who is right?
For a federal court to have jurisdiction over a claim relating to a state election, it will have to find a question relating to the Constitution or some federal statute; it doesn’t have any authority over purely state law questions. With that in mind, consider the following scenarios:
- The legislature of a red state simply cancels a presidential election and awards its electoral votes to Donald Trump.
- The same legislature holds the election, but ignores its outcome, and identifies Trump as the winner on the day of the election.
- The same legislature holds the election, but throws out the votes from every large metropolitan area in the state on the ground that “everyone knows elections there are corrupt.” It certifies Trump as the winner of the election.
- The same legislature, having adopted a statute permitting mail voting, decides to throw out all mail votes, which it knows to be predominantly in favor of Democrats. Trump consequently carries the state.
How do these scenarios play out in federal court? #1 can probably be attacked as a violation of the Fourteenth and Fifteenth Amendments and federal election laws. The same would be true of #2. #3 would appear to be inconsistent with the holding in Bush v. Gore, which applied the equal protection language in the Fourteenth Amendment to federal voting rights, although the Court has never taken that case seriously as a precedent. But #4? I’m not at all sure there would be an obvious way to get into federal court under that scenario.
In my opinion, therefore, the concern about Moore is completely justified.