Talk:Moore v. Harper

'See Also' should include a link to Smiley v. Holm

Smiley v. Holm will, undoubtedly be referenced as stare decisis as it directly, and specifically relates to redistricting (In Minnesota) and the state's constitutionally mandated "legislative process." There is an existing good article on Smiley v. Holm already on Wikipedia. Just need to add the link 2600:1700:6E1:79E0:6878:E9CE:3A3F:7CE1 (talk) 13:51, 9 October 2022 (UTC)

I've added it explicity in prose when discussing the theory in the BG section. --Masem (t) 13:58, 9 October 2022 (UTC)

do others agree

that none of the content below, removed in full on October 20, is worthy of inclusion?

At the time of Moore, current or former associates of the Federalist Society held a 6-3 supermajority on the court. The Federalist Society, a conservative-libertarian group, advocates for a textualist and originalist interpretation of the Constitution, and under the direction of Leonard Leo has for many years groomed candidates for appointments to federal judgeships. Leo was instrumental in vetting Supreme Court appointees John Roberts and Samuel Alito for president George W. Bush, as well as president Donald Trump's three appointees. Leading up to the 2020 elections, justices Thomas, Alito, Gorsuch and Kavanaugh expressed support for the ISL view that state courts could not usurp the role of the legislature in establishing federal elections rules.

Leo oversees a network of organizations funded largely by dark money that advocate for various conservative causes. One organization, the Honest Elections Project (HEP), is a major proponent of the ISL and asserts that a textualist or originalist reading of the Constitution grants state legislatures exclusive authority to establish and enforce state election rules for federal elections, unfettered by oversight from state courts or governors, and without state constitutional restrictions. This interpretation was contrary to previous interpretations of the Constitution, which held that legislatures, courts and governors shared that authority. Critics said that if the ISL was adopted, it would be possible for state legislatures controlled by one party to establish and enforce election rules to suit their partisan objectives, including rejecting certain ballots or procedures to overrule the voting majority in federal elections and declare their party candidates the winners. The only restriction of this authority would be the Electoral Count Act, which requires governors to certify their states' election results. By 2022, thirty of fifty state legislatures were controlled by the Republican Party. HEP had for years filed amicus briefs to the Supreme Court to promote the ISL.

Critics contend Supreme Court adoption of ISL has the potential to end American democracy in its current form. In a July 2022 research paper entitled "The Supreme Court's Role in the Degradation of U.S. Democracy," the Campaign Legal Center, founded by Republican Trevor Potter, concluded that the Roberts Court "has turned on our democracy" and was on an "anti-democratic crusade" that had "accelerated and become increasingly extreme with the arrival" of Trump's three appointees. Liberal election law expert Richard Hasen wrote that adoption of ISL "could provide the path for election subversion." In October 2022, Obama administration acting solicitor general Neal Katyal joined former federal appeals court judge J. Michael Luttig and other attorneys to file a "merits brief" with the court, arguing against adoption of ISL. Luttig, who has long been highly regarded in conservative legal circles, characterized Moore as "without question the most significant case in the history of our nation for American democracy."

me (talk) 17:57, 6 November 2022 (UTC)

It's far too much overkill for inclusion, though the ISL page may have room for that content. And while this case could have significant implications, I feel it is going to be better to wait to see until at least the orals to know how to write this. If it looks like the Justices are going to rule against the petitioners (eg that ISL is not legit) then it doesn't make sense to go in depth. If they are going to take ISL seriously, then it does makes sense to go into its background more, but not this much detail. Masem (t) 18:03, 6 November 2022 (UTC)

But should all of it be excluded? A great deal of it, I'd argue most of it, does not hinge on the ruling. Readers need to know how this case came to be. It is the culmination of decades of planning. me (talk) 18:06, 6 November 2022 (UTC)

I know there was a recent article Leo and ISL (eg [1]) but I think that the ISL page should have more of the discuss of the history, which we can allude to at a high level here (eg "The case is a result of years of planning and positioning by the Federalist Society, led by Leonard Leo, to bring ISL to the courts to be reviewed by judges groomed by the Society." or something like that), pointing to the longer details at the ISL page.

The last paragraph could be of interest but I would caution against too much detail at this time, not knowing which way the Justices go on the case. Masem (t) 18:15, 6 November 2022 (UTC)

On December 7 lots of people will come here wondering what this case is all about, long before the summer decision. Apart from that, do you agree with the original reversion rationale? me (talk) 18:22, 6 November 2022 (UTC)

Which should be covered in depth better on the ISL page (the more modern attempts to introduce it).

To take a separate case, I worked also on the Dobbs case. When the leaked decision came out, it was then made sense to expand the background since it was nearly confirmed to be a landmark case because of this.

Right now, it is impossible to read how this case will be taken at SCOTUS outside of three Justices' prior comments, which is why I'm hesitant to expand.

And as to the removal here, I would tend to agree that there's a bit too much coatracking on this article (content more appropriate at ISL) and that it is more one-sided than it needs to be on this page. Masem (t) 18:29, 6 November 2022 (UTC)

Beginning December 7, readers are more likely to google on Moore v. Harper than on "independent state legislature theory" to find out what's going on, and I've tried to find sources showing support for ISL, without much success (maybe others might be able to find sources to offset perceived POV, rather than removing the content wholesale) and a plausible explanation for that might be that its supporters don't want to call attention to "without question the most significant case in the history of our nation for American democracy" unless/until it's a fait accompli, then they'll shout it from the mountain tops in glee. me (talk) 18:52, 6 November 2022 (UTC)

We have the link to ISL in both the lede and the body, so even if they are searching for Moore v. Harper, we have the detailed explanation for that at the ISL links. It's not like ISL isn't discussed anywhere else on WP and we need this article to go more in-depth. And by balance, it is the excessive focus on the support of ISL came about, and not how it has been fought against in courts. But that's all stuff to cover on the ISL page , not here, until we know more about the legal ramifications of the SCOTUS take on it. Masem (t) 19:01, 6 November 2022 (UTC)

ISL is no longer an abstract theory, it is a concrete SCOTUS case that will be heard in a month. Naturally, it should be discussed at least to some extent here, including how it got to the court. We don't need to wait for the decision to understand that, nor to understand the ramifications of the decision. In the interest of brevity, I'll cut to the chase as to what it would very likely mean given our current political environment: one-party rule in America for as long as that one party controls legislatures of key states. The White House, the Senate, the House — lock, stock and barrel. Does one-party rule sound closer to democracy or to fascism? If POV is asserted, and reliable sources can dispute or refute that POV, they can be included, but it's notable that Katyal and Luttig (the latter a Scalia protégé and lion of conservative jurisprudence who ushered Thomas onto the court) have teamed to oppose ISL in a brief to the court; there's the balance. me (talk) 21:23, 6 November 2022 (UTC)

Luttig, who was twice on GWB's short list for SCOTUS: "Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine"[2] me (talk) 21:36, 6 November 2022 (UTC)

You are now arguing a WP:RIGHTGREATWRONGS point. Yes, this is a very dangerous case in terms of American Politics but we are WP, we can't take a side, and it is far better to way to see which way the wind is blowing at Orals to figure out how bad it may be. Masem (t) 21:41, 6 November 2022 (UTC)

How does the content take a side in a way that cannot be remedied by collaborative editing as opposed to wholesale removal, the latter arguably taking a side? POV is not always expressed by what is added, but also by what is removed. me (talk) 21:49, 6 November 2022 (UTC)

We've already have a brief section on what the impact could be without necessarily saying ISL would be bad. That's neutral. Masem (t) 22:13, 6 November 2022 (UTC)

As far as I can see, the "brief section" is limited to "is expected to have a significant impact on future federal elections" and "the ruling would likely impact the 2024 United States elections" without any mention of how, yet we factually know how. I don't think an informed person needs to be partisan to conclude those are understatements. In any event, I don't see I'm gaining traction here; maybe I'll consider an RFC. Enjoyed talking with you. me (talk) 22:27, 6 November 2022 (UTC)

no, we have no idea how, we have speculation how it would affect it, but that's something we should not go into in depth due to WP:NOT#CRYSTALBALL. And if you don't understand how what you're suggesting is partisan, that's a problem. It's written to be critical of ISL, which we cannot do without both sides, which are all should be present at the ISL article, not here. Masem (t) 22:34, 6 November 2022 (UTC)

It is a fact that ISL would afford state legislatures, 30 of which now controlled by Republicans, the exclusive authority to write election laws without oversight from state courts or governors, which is contrary to all precedent. The content does not assert legislatures would change their laws for partisan advantage, only that they could, because that's what Moore is all about. That's all I got here. me (talk) 23:03, 6 November 2022 (UTC)

It is not a fact, because there's no implementation of ISL , or how courts have ruled on it, to know to what degree it applies. Experts can surmise that if the extreme take that state legislatures and only them can deal with election-related matters, then the followthrough of Republican-controlled states controlling everything can make sense, but that requires several things to have already happened, none which have yet.

That's why if we're going to include what this case could mean for ISL, prior to knowing the direction SCOTUS will take, needs to be well-balanced, and right now we just simply can't write to that.

The case will be heard in first week of Dec and then we can have a better read if we can expect it to go one way or the other, which will make it easier to use expert sources about it. But right now, there's a lot of crystal-balling on what could happen, beyond that we know three Justices have spoken favorably of it, and that's really all WP should include until more is known. Masem (t) 01:54, 7 November 2022 (UTC)

We don't need to wait until ISL is implemented to know what it means. By that I don't mean the consequences of implementation, but rather how it is explained in the ISL article and elsewhere. Now, if SCOTUS allows some limited/modified version of ISL, we can cross that bridge when we reach it. But as it stands right now, it is a fact that ISL as defined would allow state legislatures to enact their own election laws unfettered. The Federalist Society hasn't been pursuing this grail for decades for nothing. They know exactly what it means, the 6-3 Federalist court knows exactly what it means, and Katyal, Luttig et al. know exactly what it means, and this article should discuss it. me (talk) 02:40, 7 November 2022 (UTC)

Right now, there is no legally in place version of ISK to know how it actually would be implemented... the best we can estimate is that some states are trying to arguing that decisions related to districting should not have court scrutiny (relevant to this case). There are lots of pendants that have given views of how far ISL could go, but since no legal version of it exists, it is wild speculation. Masem (t) 18:25, 7 November 2022 (UTC)

The definition of ISL is currently known. How it might be implemented later is unknown. It does not need to exist to know how it is defined, because it is the independent state legislature theory. me (talk) 18:41, 7 November 2022 (UTC)

This gives far too much prominence to the views of unnamed "critics" and does not do a good job of describing the case in a neutral manner. I would not support any of this content in this article. Mr Ernie (talk) 17:19, 7 November 2022 (UTC)

I encourage editors to edit, rather than purge, and to include sources that might counter any perceived POV, but as I said previously, I have looked for such sources without much success, and described a plausible explanation for that: they don't exist. me (talk) 17:50, 7 November 2022 (UTC)

Strongly agree with this point, and am also opposed to wholesale purging of content. Was some of that text moved over to the Independent state legislature theory article? Cheers! 98.155.8.5 (talk) 02:13, 8 December 2022 (UTC)

No, I tabled this at least until we see the reporting on today's arguments. soibangla (talk) 02:17, 8 December 2022 (UTC)

Okay, good to know, cause I see zero mention of the Honest Elections Project (HEP) in either article. Some background would be nice. Thanks! 98.155.8.5 (talk) 02:19, 8 December 2022 (UTC)

Smiley v. Holm is pertinent context

I think should be included Wikipietime (talk) 11:32, 21 November 2022 (UTC)

It is mentioned at the end of the background section. Masem (t) 13:35, 21 November 2022 (UTC)

"all available from docket page"

Masem, I think it's better to make it easier for readers to find the two key briefs from the attorneys who argued the case, by specifically breaking them out soibangla (talk) 17:15, 15 December 2022 (UTC)

On the Questions presented

@Pierremariejeanahlstrom: The Question Presented field in the infobox is a verbatim quote from the petitioners writ of certiorari, and is not language we can change, including the excessive quote and seemingly NPOV stance. We can't we rewrite it unleash thr Court itself presented a reformed question,vwhuch I don't see here. Masem (t) 18:29, 15 December 2022 (UTC)

See the writ here [3] for how we have to quote the question. Masem (t) 19:05, 15 December 2022 (UTC)

On possible mootness

The new addition is too long, and includes too much that is speculative. Yes, the change at NC's SC and their rehearing of the underlying case is important, and thus there may be a possible moot case at SCOTUS. But we cannot take the request that SCOTUS made to assume they will render a decision related to mootness. That's too much detail. (We normally do not include SCOTUS's requests to parties or third-parties for more information after a case is certified, that's just too much detail for WP's level of coverage). Masem (t) 15:37, 3 March 2023 (UTC)

The edit is not too long and certainly does not include too much that is speculative. It does not assume they will render a decision related to mootness. You use the term "may," I used the term "might" (not would) which is consistent with what the reliable source suggests at its close; it's why the source was written in the first place. By omitting the SCOTUS order, readers cannot know the genesis of why the case might become moot and the potential consequences thereof: Moore gets dismissed. It is also important for readers to know the order arose due to the change in the political composition of the NC SC and its reconsideration of the prior ruling. We can later add the eventual outcome when it happens to bring it all full circle. soibangla (talk) 16:41, 3 March 2023 (UTC)

Case resolved, in need of updating.

The Supreme Court case has been resolved 6-3, disproving the ISL theory. How should it be updated? Baudshaw (talk) 14:31, 27 June 2023 (UTC)

I've added to the lede, and I am sure others will be editing the infobox soon enough to reflect the decisions. For the body we want to wait for RSes to report on it so that we can cite them to explain the decision rationale better. I can't readily do that now (on a phone) but it's something will take a few days to do. There is no deadline though. Masem (t) 14:36, 27 June 2023 (UTC)

On Moore v. Harper, the 6–3 division is on mootness. Justice Alito did not sign onto the part of the dissent embracing the allegedly "mild" version of the ISL theory. The following needs to be reworded to reflect that Justice Alito did not say whether or not he supports the ISL theory. "In June 2023, the Supreme Court ruled in a 6–3 decision that the Elections Clause does not give state legislatures sole power over elections, rejecting the independent state legislature theory." Currently, this implies that Alito rejects this conclusion. He did not say one way or the other. — Preceding unsigned comment added by 2600:1004:B150:19AC:8055:8D1D:745E:4CC7 (talk) 03:10, 28 June 2023 (UTC)

We cannot tell if Alito (and Thomas and Gorsuch) supported the outright rejection of ISL, only the extreme version. That distinction is too small for the lede. Masem (t) 03:15, 28 June 2023 (UTC)

this is not remotely close to the central thrust of the decision. you may include this in an appropriate part of the body, but it most certainly does not belong in the lead. soibangla (talk) 03:17, 28 June 2023 (UTC)

The lead says that the Court ruled the "Elections Clause does not give state legislatures sole power over elections" in a 6–3 vote. Thomas and Gorsuch actually agreed with that statement; they said governors could veto election laws. Thomas and Gorsuch did embrace an allegedly "mild" version of ISL. Alito did not say anything about ISL in this case; he only joined the part on mootness. I guess the intro could be rephrased as "The Court decided 6–3 that they could rule on the case. The majority rejected ISL almost entirely." That may get closer to the main thrust of the decision while not inaccurately imputing ideas to the dissenters. — Preceding unsigned comment added by 2600:1004:B150:19AC:8055:8D1D:745E:4CC7 (talk) 03:56, 28 June 2023 (UTC)

The minority did not write the decision. I find your edits here and at the backsliding article disruptive. soibangla (talk) 04:01, 28 June 2023 (UTC)

I am not trying to disrupt. I am trying to make sure this is accurate and from a neutral point of view. I did mess up with the intro for the Democratic backsliding article. — Preceding unsigned comment added by 2600:1004:B150:19AC:8055:8D1D:745E:4CC7 (talk) 04:04, 28 June 2023 (UTC)

Seems to me your edits introduce POV soibangla (talk) 04:33, 28 June 2023 (UTC)

I think the intro should be changed to read "In June 2023, the Supreme Court ruled in a 6–3 decision that it could decide the case. The Court then decided that the Elections Clause does not give state legislatures sole power over elections, rejecting the independent state legislature theory." This will prevent confusion over what the dissent's ideas were, while still emphasizing the main thrust of the case. — Preceding unsigned comment added by 2600:1004:B150:19AC:8055:8D1D:745E:4CC7 (talk) 04:17, 28 June 2023 (UTC)

"In June 2023, the Supreme Court ruled in a 6–3 decision that it could decide the case" is factually incorrect. They did decide the case in June 2023. Again, if you want to pick apart the decision, do so in body. The lead is fine. soibangla (talk) 04:28, 28 June 2023 (UTC)

I think the main problem with the intro is the vote count. 8 justices (all except Alito) said "the Elections Clause does not give state legislatures sole power over elections". Alito did not say what he thought about that issue. — Preceding unsigned comment added by 2600:1004:B150:19AC:8055:8D1D:745E:4CC7 (talk) 04:34, 28 June 2023 (UTC)

I am trying to be clear here. The concern is the vote count "6–3" implies that the dissenters believed the opposite thing from whatever the article says majority ruled. However, in this case, Alito only said that this case is moot. Thomas & Gorsuch said the case is moot, and if it was not moot, the ISL means that states follow their normal lawmaking function, but their authority in federal election laws comes from the federal constitution, so state constitutional limits don't apply. I am trying to figure out how to accurately state that it was a 6–3 decision while not falsely implying disagreement on issues where the justices actually agreed. It could be rephrased as 6–3 saying that "The Court decided state election laws cannot avoid review against state constitutions". Thomas & Gorsuch said the opposite in their opinion. Alito did not say 1 way or the other. Mootness is key to understanding Alito's vote; he didn't really say anything else. — Preceding unsigned comment added by 2600:1004:B150:19AC:8055:8D1D:745E:4CC7 (talk) 04:54, 28 June 2023 (UTC)

If you look at nearly any RS that summarizes the case, they aren't making this type of distinction, which is typical. They are looking for how many justices joined on or concurred in opinion with the majority opinion, and anyone is dissent or concurring in judgement but not opinion are votes against the majority position. The majority position here is ISL has no weight. The position written Thomas and joined by Alito and Gorsuch is not that, even if it is "the extreme version of ISL has no weight but a lesser version might". Those types of distinctions are left to the body. Masem (t) 12:12, 28 June 2023 (UTC)

Landmark or not?

The article is internally inconsistent. The lead says that this is a landmark decision, but the final paragraph says that it could have been so. The article should agree with itself. KarlFrei (talk) 15:48, 28 March 2024 (UTC)

If it had ruled that the independent legislature theory was valid, it would have been landmark. Instead, the court shut it down maintaining what was perceived as the status quo, and thus not a landmark devision. The article is not inconsistent, since that latter statement was only a possibility that didn't come to pass. Masem (t) 17:14, 28 March 2024 (UTC)

Oops I see what you mean, I have remove landmark in the lede. Post decision sources do not call it that. — Masem (t) 17:19, 28 March 2024 (UTC)