How one 'damning question' from Ketanji Brown Jackson 'might save the day' on voting rights: legal expert

08 December 2022

On Wednesday, December 7, the U.S. Supreme Court began hearing oral arguments in the case Moore v. Harper — which deals with partisan gerrymandering in North Carolina and a far-right legal idea known as the independent state legislature (ISL) theory. The ISL, in its most extreme version, argues that only state legislatures should have any say in how elections are governed in individual states — not governors, not judges, not state supreme courts.

Critics of the ISL have been stressing that totally removing a state’s executive and judicial branches from the equation is anti-checks and balances and anti-democracy. It remains to be seen how the High Court will ultimately rule in Moore v. Harper, but legal writer Joe Patrice, in an article published by Above the Law on December 7, stresses that some of the best questioning during the oral arguments came from President Joe Biden’s appointee, Justice Ketanji Brown Jackson.

“Going into this morning’s oral argument on Moore v. Harper,” Patrice explains, “it didn’t really seem like free and fair democratic elections had much of a future in this country. If one were so inclined, the smart money said the Supreme Court would functionally cancel democratic elections…. Across hours of oral argument, Justice Jackson asked the most succinct and ultimately damning question that might save the day. Or at least minimize the impact.”

During the oral arguments, Jackson obviously had a problem with the idea of excluding a state’s executive and judicial branches from governing elections.

The Biden appointee told her colleagues, “I guess I don’t understand how you can cut the state constitution out of the equation when it is giving the state legislature authority to exercise the legislative power.”

With that comment, Patrice argues, Jackson showed just how “absurd” the ISL is.

“She actually asked this question in different phrasings a few times, but it’s really the only question anyone needs to answer,” Patrice explains. “If state constitutions create state legislatures, then how can state legislatures violate state constitutions? It ceases to be a constitutionally ordained legislature at that point!”

Patrice continues, “It’s a chicken and egg problem — except it’s more like which came first, the chicken or my dinner tonight — with a single obvious answer. If the state constitution sets guardrails of voting rights and the proper deference required to courts and the executive, then the legislature can only work within that. The GOP argued that, because the word ‘Legislature’ is in the U.S. Constitution, it elevates state legislatures above the constraints of their own state laws for this purpose, but no one — original or otherwise — ever entertained that idea. Indeed, it would be absurd to think the Framers, at the time, intended to dictate to the states how their governments should function. ‘Legislature’ is whatever the state chooses to create with all the checks and balances attendant to its own laws — just like it’s been for over 200 years.”

Patrice also praised attorney Neal Katyal, who gave the High Court justices aggressive oral arguments against the ISL.

“At the top of Katyal’s argument,” Patrice notes, “he cited the two centuries of election law and declared that it would be ‘a whole lot of wrong’ if ‘Legislature’ meant what the GOP asked for as opposed to how Justice Jackson posed her question…. Make no mistake, Chief Justice Roberts is on record buying into a watered-down version of this theory and will, after today’s battering, probably cobble something together that shields Republican legislatures without straining the outer bounds of basic notions of constitutional governance.”

Patrice adds, “But whatever compromise the conservatives try to mold will remain haunted by Jackson’s straightforward question. Which came first, the state constitution or the state legislature? It’s the constitution. It’s always going to be the constitution.”

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