Celebrating Moore v. Harper on the Fourth 2023

 

Given the din of political and cultural strife marking our times, the Fourth of July 2023 is the perfect occasion to revel in a rare triumph of constitutional fidelity, one George Washington, John Marshall and James Madison would surely recognize. And while this development puts a massive hole in the keel of the 2022 Republican Party of Texas platform and spoils dreams of Republicans who believe Joe Biden is an “illegitimately elected” president (to quote the GOP platform), those who still believe in such founding principles as separation of powers and judicial review have much to celebrate. 

Especially worthy of this year's Independence Day fireworks: Progressives and conservatives on the Supreme Court of the United States coming together last week to consign to the trash heap of ideological claptrap the so-called "independent state legislature theory," a crackpot scheme that argues state courts have limited say-so over certain ill-defined election-oriented actions of state legislatures, even if whatever election skullduggery state legislators pass into law conflicts with state and federal constitutions. 

“It would be impossible to overstate the enormity of yesterday's seminal decision in Moore v. Harper," declared retired U.S. appeals Judge Michael Luttig, one of the few authentic conservative jurists still speaking out. "Not only is it now the single most important constitutional case for American Democracy since the nation's founding almost 250 years ago, it is also now one of the most important constitutional cases for representative government in America. Today, it takes its deserved place in the pantheon of great Supreme Court cases that give meaning to the Constitution's genius of a separation of powers – among the national Legislature, Executive and Judiciary – and also between the national government and the governments of the respective 50 states of the United States."

No doubt Judge Luttig’s enthusiasm has been tempered by decisions since Moore v. Harper, including the high court's embarrassing decision that the state of Colorado cannot legally enforce a state anti-discrimination law against a Christian website designer who balked at creating wedding websites for same-sex couples. Only now is the public learning that the supposedly gay man who supposedly sought the website designer’s services never requested such services, that he has been married to a woman for 15 years and that he’s a website designer himself. If so … oops.

The high court's 6-3 decision in Moore v. Harper is more bad news for Republican Texas Attorney General Ken Paxton, lately suspended from duty pending an upcoming impeachment trial in the Texas Senate over corruption charges but in December 2020 author (supposedly) of a Trump-driven lawsuit rooted in independent state legislature theory mechanics. Paxton's suit, which leapfrogged to the Supreme Court, sought to cancel out the votes of fellow citizens in four battleground states because election laws of state legislatures in Michigan, Pennsylvania, Georgia and Wisconsin weren't strictly followed. The reason they weren't strictly followed is because the nation was gripped by a global pandemic that killed more than a million Americans; state courts, governors and other state officials, in full crisis mode, made adjustments in election protocols so citizens could vote without risking their lives.

The nation’s highest court smartly sent Paxton and his preposterous lawsuit packing without a hearing.

Ironically, the state of Texas was guilty of the very sin Paxton alleged other states were doing. Key difference: Texas overwhelmingly supported President Trump's reelection while the other four states fell into the Biden column once all votes were counted. Because of widespread pandemic fears, Texas Gov. Greg Abbott correctly extended early voting in the 2020 general election to keep Texas voters from bunching up in polling places and contaminating one another. Texas Republican firebrands sued to kill this executive measure, but the Republican-stocked Texas Supreme Court in an Oct. 7, 2020, decision sided with the Republican governor.

Under the independent state legislature theory, the state's highest court and arguably the governor would or could not have acted without approval by the biennial legislature. The Texas Legislature's laws under such a theory would have ideally remained intact in all of their unchecked legislative glory, no matter how the crisis endangered citizens and constituents.

Supporters of this fringe theory argue that their concept of independent state legislature power in electoral matters is rooted in constitutional text, Article I, Section 4, Clause 1: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.” Yet this theory defies logic: For one thing, it would be ridiculous for a state legislature to be permitted to violate the state constitution that created it. And history indicates the Framers were wary of state lawmakers to the degree they included in the U.S. Constitution the Elections Clause to ensure Congress retained final power to set rules for federal elections.

"Marbury v. Madison famously proclaimed this court’s authority to invalidate laws that violate the Federal Constitution," U.S. Supreme Court Chief Justice John Roberts wrote for the majority opinion pulling the plug on independent state legislative theory. "But Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the court decided Marbury that Chief Justice Marshall referred to it as one of society’s 'fundamental principles.’”

The Moore v. Harper ruling, and by a Republican-dominated court no less, is also bad news for fierce partisans happy to set aside, during the likely 2024 rematch between Biden and Trump, state and federal constitutions that they supposedly cherish and that many as public servants have sworn to uphold. One concern was that, if Trump again lost key battleground states, state legislatures under his thumb could disregard the election returns and expand upon the 2020 scheme of electing phony electors to cast ballots in the Electoral College – and without interference by meddlesome courts reviewing and scrutinizing such actions against the texts of their own laws and constitutions.

Forget January 6. One can imagine riots in the streets and at state capitols if state legislatures were allowed to ignore the will of the people, even if citizens were acting legitimately through the courts as a last resort. Such pursuits, if pursued with even less regard for constitutional integrity than last time, might ultimately contribute to destruction of the Electoral College so many Trump populists loudly championed in 2016 when the votes went their way – and then tried to manipulate in 2020 through the independent state legislature theory when the votes didn’t go their way.

Regarding disputes by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, Thomas’ dissent towers as the most convoluted and most desperate, pretty well confirming that his reputation as the court’s most fervent originalist is now a charade, lost amid his wife’s equally fervent post-election efforts to overthrow the presidential election through such plots as the independent state legislature theory. It also scuttles the much-vaunted constitutional expertise of U.S. Sen. Ted Cruz, the Texas lawmaker who volunteered to argue before the U.S. Supreme Court Paxton’s absurd 2020 lawsuit which, as a May 18, 2022, complaint about Cruz before the State Bar of Texas argues, would "disenfranchise over 20 million voters on factual and legal assertions that lacked any foundation and that state and lower federal courts had already uniformly rejected." The complaint notes that as fellow senators went into hiding as insurrectionists violently seized the U.S. Capitol on January 6, Cruz incredibly found time to dispatch a fundraising note: “I’m leading the fight to reject electors from key states unless there is an emergency audit of the election results. Will you stand with me?”

Judge Luttig’s optimism over Moore v. Harper suggests informed citizens anxious about Republican efforts to scuttle constitutional checks and balances can breathe easy and enjoy the fireworks this Fourth. Still, one can’t ignore the lasting damage the Roberts court has done to democracy through such decisions as the corrupting Citizens United v. FEC opinion (2010) and Shelby v. Holder (2013), the latter of which shelved Department of Justice scrutiny over even the most insignificant-seeming electoral changes and tweaks in states with historically dismal voting rights records. That opinion ironically ensured an avalanche of court litigation over disputed election law.

One must remember, too, that a third or more of us by now are unmoored from most founding principles and are fine with yet other undemocratic schemes discussed in the final desperate days of the Trump presidency, including subpoenaing ballot boxes in battleground states and even declaring martial law – something Texas right-wingers ironically suspected, without justification, that Trump’s hated African-American predecessor would attempt in 2015. Whether your brand of patriotism leans right, left or down the middle, our tumultuous past proves the struggle against those who would sink this wobbly experiment in democracy never ends.

Bill Whitaker spent more than 45 years as a reporter, editor and columnist in daily Texas journalism, including a dozen years as Waco Tribune-Herald opinion editor.