Last summer, after the Supreme Court appeared to brush aside a fringe theory that would have given gerrymandered GOP legislatures unfettered power over election procedures, progressive activists at Common Cause hailed a “historic pro-democracy decision.” MSNBC enthused that “democracy scores a win at the high court.” Even Mother Jones, The Washington Post, and Marc Elias’s Democracy Docket joined the hallelujah chorus.
Don’t look now, but there are any number of scenarios under which the time bombs embedded within that “historic pro-democracy” decision—it was 2023’s Moore v. Harper—could open the door for Chief Justice John Roberts and the court’s conservative supermajority to determine the outcome of the 2024 presidential election.
John Roberts is not your friend. It shouldn’t need repeating after a decade and a half of anti-voter, antidemocracy decisions, from Citizens United to Shelby County v. Holder and Common Cause v. Rucho, all of which have awarded electoral advantages to the GOP. Yet given this endless loop of preposterous optimism—we might even call it Roberts-washing—perhaps it needs to be said again.
Roberts’s life’s work—ever since he trained as a young clerk to William Rehnquist, a chief justice who personally intimidated Black and Latino voters in Arizona; then moved to the Reagan Department of Justice and battled the 1982 congressional reauthorization of the Voting Rights Act alongside the staunchest segregationists in Congress—has been remaking the law to undermine voting rights, boost Republican prospects, and award his side policy victories that could never be won at the ballot box.
As the nation is focused on whether Donald Trump regains the White House, it is the Supreme Court that is the heart of Republican political power. Roberts is the most effective and skilled GOP politician of his generation, if not longer. If Trump wins, Roberts will have helped enable his victory. If Kamala Harris claims the White House, the Roberts court’s rulings on the regulatory state and more stand ready to block any bold action she might seek to take in a range of areas.
Before that happens, if a tight 2024 election works its way to his court—and Roberts’s decisions on voting rights, redistricting, presidential immunity, and more have increased the opportunity that it will—then his court’s decision in Moore v. Harper could provide the pretext for the GOP supermajority to install Trump once more. If you think Bush v. Gore felt like an antidemocratic travesty, just wait.
Moore v. Harper began as the North Carolina GOP’s response to a decision by the state Supreme Court that overturned the state’s congressional maps as a violation of state constitutional provisions protecting free and fair elections. The Republican maps were so clearly and extremely gerrymandered for one side, the court found, that they were neither free nor fair. It ordered the legislature to draw a constitutional map, which resulted in this purple state electing a House delegation evenly divided 7–7 between Republicans and Democrats, rather than a 10–3 GOP edge. (North Carolina gained a seat in the decennial redistricting.)
North Carolina Republicans were trying to advance here something called the “independent state legislature,” or ISL, theory, a theretofore fringy reading of the Constitution that would give state legislatures wide latitude over gerrymandering and passing voter suppression laws.
Just four years earlier, in another case involving an extreme North Carolina Republican gerrymander, the Roberts court insisted that fairness required it not to get involved in what Roberts deemed a political issue. The court closed the federal courts to partisan gerrymandering claims but left open the possibility of state constitutional challenges.
But when the North Carolina Supreme Court acted, Republicans screamed foul at losing their gerrymandered edge. They reached for a theory cooked up in the Federalist Society hothouse, ripped from a footnote in a Rehnquist concurrence from Bush v. Gore, whose best supporting evidence is a set of 1787 documents referred to as the Pinckney Plan, which every reputable historian considers forged.
Perhaps it was easy for Roberts to lead a six-justice coalition that swatted away the ISL theory in this particular case. After all, when Republicans captured North Carolina’s elected state Supreme Court in 2022, one of the first things they did was review and then overturn the decision that created fair maps. Thanks to that decision, Republicans are expected to win a potential 11–3 House delegation edge next Tuesday. In the short term, therefore, there was nothing for the GOP to gain in Moore v. Harper. But in the long term, there existed plenty of opportunity to make mischief for a patient chief justice whose antidemocracy decisions are always teed up with a sample case that lays the groundwork for the rightward leap to come.
“When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review,” Roberts wrote for the majority. The mass exhalation that followed from liberal commentators was grounded in the hope that the Moore ruling would wipe some of 2024’s nightmare scenarios off the table. By rights, Roberts’s opinion ought to prevent extreme lawmakers from pushing slates of fake electors or declaring that “voter fraud” marred a close election in order to set themselves up as the final arbiters of the outcome in the name of “election integrity.”
And if the decision had indeed stopped there, it might have been fair to characterize it as a rejection of the ISL theory and perhaps even real grounds for celebration. But Roberts did not stop there.
Indeed, Moore v. Harper actually takes a partial step toward the ISL theory. The price for rejecting the most wild-eyed version of the theory was inducing the liberal justices to sign onto a decision that adopted a milder version of the doctrine. Call it the independent legislature–lite approach with half the lunacy but all the danger of the U.S. Supreme Court overriding state courts and determining election outcomes itself. What could go wrong?
Maybe a lot. That’s because buried within the details of this decision, as well as a short concurrence by Brett Kavanaugh, are the seeds of future cases to come. The Moore decision not only makes it clear that the Constitution’s elections clause does not liberate state legislatures from state constitutions and state law. It also stipulates that federal courts must not abandon their duty to exercise judicial review. “This Court has an obligation to ensure that state court interpretations of state law do not evade federal law,” Roberts writes. “State courts do not have free rein.” Furthermore, Roberts holds that state courts must “not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
What exactly does that mean? The court doesn’t tell us. As New York University law professor Rick Pildes has pointed out, Moore does not adopt any standard at all as far as what “ordinary bounds” might be. Nor does the decision set any boundaries to guide state courts or identify when federal courts might jump in and override. Indeed, Pildes notes, Roberts did not even rule on whether the North Carolina state court exceeded its role when it overturned the wildly gerrymandered maps at the heart of this case. We don’t have any idea what the conservative majority on the court might consider transgressive. We might not know until the court informs us. And that could arrive in the heat of a disputed presidential election.
The particularly relevant—and chilling—sentences come from Kavanaugh’s short concurrence. “In other words, the Court has recognized and articulated a general principle for federal court review of state court decisions in federal election cases,” Kavanaugh wrote. “In the future, the Court should and presumably will distill that general principle into a more specific standard such as the one advanced by Chief Justice Rehnquist.”
In other words, here is a high court conservative majority—which, by the way, includes three lawyers who helped develop and argue George W. Bush’s case in Bush v. Gore—announcing that it can put its thumb on the scale in a future election, without defining the standard for that action in advance. This would be a heavy ask even for a court with a sterling reputation. From this court, so thoroughly outsourced to the Federalist Society, GOP operatives, and billionaire oligarchs, it’s truly terrifying.
How could this play out this fall? One distressing clue arrived Wednesday afternoon, less than a week before Election Day, when the court, apparently along party lines, allowed Virginia to purge some 1,600 voters—even those known to be U.S. citizens—under the guise of preventing noncitizen voting. Virginia’s action, a clear violation of the National Voter Registration Act, not only sows last-minute chaos there but blesses similar suppression and chicanery elsewhere.
So let’s say the 2024 election comes down to Wisconsin. Long lines in Milwaukee lead the state Supreme Court to keep polls open several additional hours to ensure that every vote is counted. Or maybe a deluged U.S. Postal Service has a backlog of ballots postmarked on or before Election Day but has not been able to deliver them all. Then, just as it did in 2020, the state Supreme Court provides additional time for any ballot sent prior to the deadline to arrive, for which Democrats have pushed. Republicans duly appeal both state court rulings to the U.S. Supreme Court, which would then decide whether potentially thousands of likely Democratic votes would count in a state where margins in 2016 and 2020 have been razor-thin. The Supreme Court rules that the counting must be halted.
Here’s another possibility. Imagine what happens if the fictional, yet frighteningly plausible, plot from the final episodes of HBO’s Succession became real life. On that show about family machinations inside a conservative media empire quite like Rupert Murdoch’s at Fox News, a suspicious fire breaks out at a Milwaukee vote-counting center on election night. Wisconsin will determine the presidency. Yet some 100,000 ballots in a Democratic-leaning area—more than enough to tip the balance in either 2016 or 2020—are destroyed. The state Supreme Court orders extraordinary relief to find a way to count those votes. The U.S. Supreme Court shuts it down, effectively picking the next president.
Outlandish? Ridiculous? The stuff of prestige TV and not reality? Perhaps. But no more so than Florida in 2000, when a handful of hanging chads, a poorly designed butterfly ballot, abortive recounts, a margin of barely 500 votes—and finally an abysmally reasoned decision from the U.S. Supreme Court—determined the winner.
A court that has already proven, time and again, its willingness to alter process, invent doctrines, and predetermine outcomes for its own side in landmark rulings on the proper conduct of democracy in America shouldn’t be afforded the benefit of the doubt when it sets out to conjure up a new doctrine of election oversight on the fly. Kavanaugh’s detour into the independent state legislature debate from Bush v. Gore—which he explained on CNN in 2000 as a lawyer for Bush’s team—sets the stage. The Roberts court is positioning itself to decide the next ideologically driven challenges to our democratic process with no clear standard at all.
Given that every major decision that the Roberts court has made on voting rights and democracy has aligned with the political interests of the GOP, it’s dismayingly easy to imagine that the standard will become yet another dressed-up version of heads Republicans win, tails Democrats lose.
Someone, of course, needs to decide when elections go haywire. But when the standard is not clear in advance, and when that authority ultimately falls to a court that might as well be wearing red robes rather than black ones, no one should feel comfortable. It’s simply not credible to suppose that it could be trusted for anything more than rubber-stamping the critical operations of our democracy to the perpetual minoritarian advantage of Team Red.
This descent into opportunist hackery is the real legacy of the Roberts court. As the justices on the inviolate right-wing majority are cheered by Federalist Society crowds and feted by politicians, as they vacation on superyachts and spend summers junketing in Italy, they still fail to understand why they’re seen as partisan actors. Or perhaps more accurately, and far scarier, they just don’t care.
The ultimate message of Moore v. Harper is that it’s the U.S. Supreme Court—and John Roberts—who will make these decisions going forward, heading into what might be one of the closest and likely the most litigated presidential election in our history. George W. Bush, the president Roberts worked alongside to end the Florida recount and who returned the favor by nominating him to the highest court, fancied himself The Decider. Yet in the democracy that Roberts has so artfully bent to favor conservative outcomes, the final decisions over who controls our elections, and who decides the winners, has shifted to his unelected body of nine, appointed for life—five of them named by presidents who lost the popular vote, three of whom earned right-wing bona fides as young lawyers with Bush v. Gore. The decisions might well begin and end with him.
The clear message of Moore to right-wing litigants is to keep trying. The next wave of independent legislature challenges will arrive in the days after the 2024 presidential election. One is being teed up already in Pennsylvania. And they could prove crucial in deeply gerrymandered Georgia, Wisconsin, and Arizona. These extraordinarily close states provided President Biden’s Electoral College victory in 2020 with the slenderest of margins—and they were also the sites of militant challenges from election deniers, some in the state legislature that sought to overturn the results of free and fair balloting in the raw pursuit of power.
It’s easy to imagine what these controversies might look like after the 2024 balloting. If the court adopted the Rehnquist standard, per Kavanaugh’s suggestion, it would resume the work begun in Bush v. Gore and make itself the ultimate arbiter of any recount.
In the Pennsylvania case, Genser v Butler County Board of Elections, the state Supreme Court recently affirmed, in a 4–3 decision, that any voter who returns an absentee ballot without also enclosing it in the inner security envelope should get an opportunity to cast a provisional ballot. If Republicans lose Pennsylvania narrowly, this will certainly arrive on the Supreme Court’s doorstep. Should those votes count? Will they? If the decision lands with the conservative supermajority, just imagine if the number of absentee ballots set aside is not larger than the margin of victory.
