Wednesday, June 28, 2023

The Court on Tuesday in Moore v. Harper emphatically rejected the independent state legislature theory. Chief Justice Roberts wrote for the Court in a 6-3 decision, and held that state courts have the power to enforce state law, including with regard to elections. He invoked Marbury v. Madison, the 1803 decision that famously recognized the power of courts to review the constitutionality of executive and legislative actions. The Court declared: “We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”

Win for judicial review. I wonder if Ryan Cooper was forced to work on the piece. 

Stop what you're doing and read the extraordinary amici curiae brief Akhil Amar, Vik Amar and Steve Calabresi have just filed in Moore v. Harper. That's the case involving a claim by North Carolina legislators that under the Constitution only the legislature of a state has the power to regulate federal elections--without any interference from state courts or any constraints from state constitutions. The brief from Akhil, Vik and Steve is an intellectual battering ram that demolishes the independent state legislature theory. It is also the punchiest brief filed in a very long time. In its substance and by its candor, the brief sets a new standard for friend of the court. The brief is available at this link.

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