Former White House press secretary Jen Psaki warned Saturday of future repercussions that could stem from a US Supreme Court decision that rejected a GOP-led effort to change federal election rules to through the “independent state legislature theory” (ISL).
In Moore vs. Harper, the Court voted 6-3 Tuesday to reject the ISL theory, which asserts that an election clause in the Constitution gives the state legislature authority to control federal elections by manipulating election maps and passing laws that could harm the rights of voters. Earlier this month, the Brennan Center for Justice reported that the ISL theory “has even been used as political cover to try to quash elections.”
The theory was proposed by North Carolina Republicans in the Moore vs. Harper case, which they filed after the North Carolina Supreme Court struck down a congressional map drawn in the GOP-led state legislature over alleged rigging. The map passed a party-line vote in 2021, giving 10 seats to Republicans and four to Democrats.
North Carolina State House Speaker Tim Moore, who brought the case, said during oral arguments, which the US Supreme Court heard in December, that the state court violated the Election Clause of the US Constitution when it annulled the map. He cited the ISL theory to argue that state legislatures have more authority than state courts and state constitutions with respect to federal elections.
However, the Court did not agree that Chief Justice John Roberts wrote the opinion. Roberts was joined mostly by Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor. Justices Clarence Thomas, Neil Gorsuch and Samuel Alito dissented.
“The Elections Clause does not grant exclusive and independent authority to state legislatures to make rules with respect to federal elections…[and] does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote in the opinion.
In an opinion piece published by MSNBC on Saturday, Psaki wrote that while the Court’s Tuesday decision was “greeted with a sigh of relief” as it avoids giving partisan legislatures the power to shape election laws , it could still lead to a “troubled path”. “
The former White House press secretary added that the decision gives authority to federal courts, including the Supreme Court, to decide election disputes.
“So it was a surprisingly good ruling from the majority of the Supreme Court justices. But it may leave room for a lot of court shenanigans before the 2024 presidential election,” he wrote.
Federal courts may have the final say in election disputes because the Court’s decision provides an open-ended interpretation of election law.
“While the Court does not adopt a test by which state courts’ interpretations of state law in cases involving the Elections Clause can be measured, state courts may not transgress the ordinary limits of judicial review so that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” Roberts wrote in the opinion.
Still, former President Barack Obama praised the Court’s decision to reject the “fringe theory that threatened to upend our democracy and dismantle our system of checks and balances.”
Moore was represented in the case by attorneys from the Cooper & Kirk law firm, including Megan Wold, who served as a law clerk for Alito, who dissented from the majority opinion.
Alito argued that the case should have been dismissed as “indisputably moot” due to new developments at the state level that reversed the previous ruling by the North Carolina Supreme Court.
“Today’s majority opinion is clearly advisory,” the dissent said.
news week contacted Wold by email for comment.