How to Calm Election Law Before 2024 in Moore v. Harper.

“With respect to this idea of whether there is an outer federal constitutional standard that could apply here, we agree that that’s so, and the Court could recognize that kind of constitutional claim,” said Solicitor General

Elizabeth Prelogar,

representing the U.S. government. The parties disagreed about how high or low to set the bar, and whether the North Carolina judiciary crossed it by redrawing the state Legislature’s House redistricting map.

But the Constitution says the details of Congressional elections “shall be prescribed in each State by the Legislature thereof.” Everybody agrees this phrase doesn’t mean nothing, which is a good start. Also notable: None of the advocates argued that Moore v. Harper might help

Donald Trump

steal the 2024 election, another canard wafting through the media. None claimed the case might let state legislatures disenfranchise voters protected by federal law.

So where does that leave the High Court? The North Carolina Supreme Court threw out the Legislature’s redistricting plan, saying it was a partisan gerrymander banned by the state constitution. But the ruling rested on vague guarantees, such as a protection of “free elections.” If that standard can be used today to overthrow a House map, tomorrow it could invalidate anything.

Justice

Neil Gorsuch

seems to think the state Supreme Court’s ruling is not only an obvious power grab, but an admitted one. “What do we do with the fact that in this opinion that we have before us,” he said, “the North Carolina Supreme Court said it had to do something because the Legislature would not act?” If judges use a state constitution to upend how Congressional elections are substantively run, at what point has the legislature no longer “prescribed” the rules?

As another example to prove Justice Gorsuch’s point, the Pennsylvania Supreme Court in 2020 moved a ballot deadline by three days, while admitting: “There is no ambiguity regarding the deadline set by the General Assembly.”

Much of the argument concerned where to set the standard. Ms. Prelogar wants the Justices to be so deferential that the North Carolina ruling would easily stand. That sounds like anything goes. Chief Justice

John Roberts

and Justices

Brett Kavanaugh

and

Amy Coney Barrett

appeared to be looking for a middle ground that would say North Carolina’s court went too far, while allowing some state judicial review.

We think Justice Gorsuch has it right that the Elections Clause is a clear delegation of federal power to legislatures. And at a minimum a Court majority should affirm this principle and find that North Carolina crossed it. But the Court should also set clear guidelines that will deter the next audacious state Supreme Court rewrite. It undermines public trust in elections to have voting rules revised by judges on the fly, weeks or even days before Election Day.

Democrats have decided that state courts are friendly terrain, and so they now argue that ballot deadlines are discriminatory, along with signature verification for mail votes, and who knows what’s next. Unless the Supreme Court clearly narrows the prerogatives of state judges, the voting laws will be up for grabs from now until weeks after Election Day 2024, with damaging consequences for democracy.