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- Title
MOORE TO COME: THE IMPENDING INDEPENDENT STATE LEGISLATURE DEPARTURE STANDARD.
- Authors
Weiman, Blake L.
- Abstract
State constitutions have long served as a source of robust protection for the right to vote. However, the Supreme Court’s recent decision in Moore v. Harper may substantially disrupt state court application of such constitutional provisions to federal elections. While the Court declined to adopt the Independent State Legislature Theory (“ISLT”) in its maximalist form, it did signal an intention to adopt a less stringent variant of the theory that could, in certain instances, constrain state courts. Part V of the Court’s opinion announces that state courts may not “transgress the ordinary bounds of judicial review” when applying state constitutional provisions in the context of federal elections. Yet, the Court refrained from developing this vague principle into an intelligible legal standard. This Note posits a potential version of that test—the departure standard—and examines its likely impact on the right to vote under state law. This Note aims to ascertain how the impending ISLT standard will take shape beyond Moore and evaluate its anticipated impact on relevant state court decision-making. While the precise application of a standard is far from certain, the Court’s opinion and pre-opinion consideration of Moore provide meaningful insight into when a state court might conceivably run afoul of the Elections Clause. As this Note demonstrates, examining existing state court decisions through the prism of Moore helps to illustrate what may be potentially fatal defciencies in analysis, outcome, or both in cases to come. Finally, this Note advances a series of projections regarding the likely path forward for voting rights-affrming state court constitutional decisions. It argues that application of the ISLT through the departure standard will result in the federal courts stymying the development of state constitutional election law that varies from federal constitutional orthodoxy. Federal courts would be likely to misapprehend the nature and frequency of intra-state disputes giving rise to an ISLT question. Moreover, state lawmaking and judicial review processes would likely be manipulated to evade ISLT under the departure standard. In sum, the Court’s seemingly judicious disposition of Moore has precipitated even more complex questions that it must answer in the near term in the midst of fraught, highly competitive, partisan federal elections.
- Subjects
STATE constitutional law; SUFFRAGE; STATE courts; JUDICIAL review; ELECTIONS
- Publication
New York University Journal of Legislation & Public Policy, 2024, Vol 26, Issue 2, p517
- ISSN
1094-513X
- Publication type
Article