The Supreme Court will be hearing a case that poses a ‘grave threat to American democracy’: journalist

On Thursday, June 30, the U.S. Supreme Court agreed to hear the case Moore v. Harper, which deals with the independent state legislature doctrine — a crackpot legal theory being pushed by far-right MAGA Republicans. ISL argues that state legislatures should have sole authority over how elections are governed, and that a state’s supreme court, judiciary or governor should have no say in the matter.

Journalist Ian Millhiser, in an article published by Vox on June 30, lays out some reasons why the outcome of Moore v. Harper — depending on what the High Court eventually decides — could inflict serious harm on U.S. democracy.

“The Supreme Court’s announcement on Thursday that it will hear Moore v. Harper, a case that could concentrate an unprecedented amount of power in gerrymandered state legislatures, should alarm anyone who cares about democracy,” Millhiser warns. “The case is perhaps the gravest threat to American democracy since the January 6 attack. It seeks to reinstate gerrymandered congressional maps that were struck down by North Carolina’s highest court because they ‘subordinated traditional neutral redistricting criteria in favor of extreme partisan advantage’ for the Republican Party.”

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Millhiser continues, “The plaintiffs argue that the (North Carolina) State Supreme Court didn’t have the authority to strike down these maps, and rest their claim on legal arguments that would fundamentally alter how congressional and presidential elections are conducted.”

Millhiser notes that the U.S. Supreme Court has “rejected” the independent state legislature doctrine “many times over the course of more than a century” but adds that the theory “started to gain steam after Republican appointees gained a supermajority on the Supreme Court at the end of the Trump Administration.”

“Under the strongest form of this doctrine,” Millhiser explains, “all state constitutional provisions that constrain state lawmakers’ ability to skew federal elections would cease to function. State courts would lose their power to strike down anti-democratic state laws, such as a gerrymander that violates the state constitution or a law that tosses out ballots for arbitrary reasons. And state governors, who ordinarily have the power to veto new state election laws, would lose that power.”

Millhiser points out that four of the U.S Supreme Court’s nine justices have “endorsed some version of the independent state legislature doctrine”: Clarence Thomas, Samuel Alito, Brett Kavanaugh and Neal Gorsuch.

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“That most likely leaves the fate of American democracy in the hands of Justice Amy Coney Barrett, a Trump appointee who typically votes with Republicans in election cases,” Millhiser observes. “This said, it is unclear whether this Supreme Court would implement the most extreme version of this doctrine — with a rigid rule that a state supreme court can never strike down a state election law, or that a state governor can never veto an election bill — or a less extreme one.”