In Moore v Harper, America’s Supreme Court threw cold water on the idea that state legislatures have near-absolute authority, unchecked by state courts, to set the terms of federal elections
to boost their candidate’s chances of staying in the White House. Citing the “independent state legislature” theory, Mr Trump’s backers sought to block state-court rulings in Pennsylvania and elsewhere that made voting easier during the covid-19 pandemic, by, for instance, extending deadlines for mail-in ballots. And after election day, legal advisers drew on the notion in cooking up a radical scheme to replace electors in states won by Joe Biden with “alternative” slates for Donald Trump.
Chief Justice Roberts roundly rejected this contention. “Since early in our nation’s history”, he wrote, “courts have recognised their duty to evaluate the constitutionality of legislative acts.” The federal constitution might empower state legislatures to make laws governing elections, he continued, but it “does not insulate state legislatures from the ordinary exercise of state judicial review”.
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