What gives? For one, the political stakes in Harper were exaggerated all along. The Constitution says federal election rules “shall be prescribed in each State by the Legislature.” North Carolina state courts rejected the legislature’s congressional map as a gerrymander and imposed a different one. The question for the Supreme Court in Harper was whether this unconstitutionally intruded on the legislature’s role.
In the panicky aftermath of Jan. 6, 2021, the justices’ decision to hear a case on this unresolved constitutional question was cast as a radical bid to help Republican legislatures steal presidential elections. That was a wild distortion. In the event, a six-justice majority said state courts can generally adjudicate state election laws — but that they cannot go so far as to “arrogate to themselves the power vested in state legislatures.” If that happens, the federal courts can intervene.
Media coverage had portrayed independent state legislature theory as a binary; something that the Supreme Court would either accept or reject. In fact, as Chief Justice John G. Roberts Jr.’s majority opinion held, there’s a continuum — state legislatures are not “independent” of other parts of state government, but nor can their explicit constitutional role be erased.
Where’s the line? That’s unclear. The justices punted by saying such questions are “complex and context specific.” But what is clear is that the Supreme Court reserves the right to draw the line as it sees fit. That’s what three conservative justices wanted to do in Bush v. Gore in December of 2000. Those justices argued that the Florida Supreme Court was subverting the legislature’s election rules with its recount, compelling the justices in Washington to swoop in. Citing Bush v. Gore, the closing passages of Roberts’s Harper opinion essentially remind state officials: We can do that again.
One way to read Moore v. Harper is as a muscular assertion of judicial review — or even judicial supremacy — at the state and federal levels. Roberts makes a point of citing Marbury v. Madison, the 1803 decision that secured that judicial prerogative. The court is establishing itself as the final arbiter of election disputes, and it is managing to do so with liberal acclaim.
This is a pattern. In Allen v. Milligan, the Alabama redistricting case decided this month, the Supreme Court pleased and surprised liberals by holding that Alabama’s congressional map likely violated the Voting Rights Act. That 5-4 decision maintained a significant role for the justices in approving or disapproving state legislative maps. Like the Harper case, Milligan created an uncertain legal landscape: States can’t ignore race in drawing maps, but nor can they consider it too much. No one knows exactly where the limit is on states’ use of racial classification in districting — but everyone is on notice that the Supreme Court will continue to be the referee.
Congress’s response to Donald Trump’s effort to overturn the 2020 election was also to vest more power in the Supreme Court at election time. Last year’s Electoral Count Act reform bill explicitly provides that the federal judiciary will have final say on which slate of electors a state can send to Congress in case of a dispute.
The judiciary — and ultimately the Supreme Court — is the best available authority to superintend the nation’s closely polarized elections. But that system is hardly a panacea. Bush v. Gore shows what it looks like in practice. That decision unleashed liberal vitriol against the Supreme Court that is the precursor to today’s liberal disenchantment with the institution. Rhetoric from Democratic politicians attacking the justices is now far more aggressive. Senate Democrats want to set up a bureaucracy to police their supposed corruption.
The justices’ consolidation of power over elections has not been a partisan project — the decision in Harper was cross-ideological, and the Electoral Count Act reform was a bipartisan bill. But the Supreme Court finds itself in an increasingly volatile institutional position: Relied on to decide which party takes power in times of uncertainty, but also increasingly attacked as partisan and illegitimate.
The Harper decision reiterates that the justices sit at the apex of the U.S. election system, as they did in Bush v. Gore 23 years ago. The difference between now and then is that Democrats have adopted an openly adversarial posture toward the Supreme Court, laying the foundation to subvert or ignore future election decisions they abhor.
