How a pending Supreme Court case could determine whether US democracy 'lives or dies': legal expert

25 October 2022

On Wednesday, December 7, the U.S. Supreme Court is scheduled to hear oral arguments in Moore v. Harper — a case that deals with partisan gerrymandering in North Carolina and a far-right legal idea known as the independent state legislature theory. In its most extreme form, the ISL argues that only state legislatures have the right to govern elections and not governors, judges or state supreme courts.

Many civil libertarians and legal scholars have been sounding the alarm about Moore v. Harper, warning that if enough GOP-appointed High Court justices agree with the ISL, Republicans in state legislatures will have the power to throw out any election results that they don’t like. The ISL, as they see it, is a recipe for authoritarianism.

One such legal expert is Kimberly Wehle, an author and former assistant federal prosecutor who is now a law professor at the University of Baltimore.

READ MORE: Robert Reich warns of Supreme Court case that could give GOP-led states 'total power over our democracy'

In an article published by the conservative website The Bulwark on October 25, Wehle warns, “Two reasons the stakes are high for the November 8 midterms: the Big Lie and the far-right U.S. Supreme Court majority. It is no exaggeration to say that these two factors will determine whether our system of representative democratic government lives or dies.”

According to Wehle, the “heart of the threat to American democracy” has “little to do with whether Donald Trump or Joe Biden runs for president in 2024.”

“If the GOP takes over the House and the Supreme Court decides a case called Moore v. Harper as the GOP wants it to,” Wehle explains, “it is entirely possible that Democrats will be locked out of the presidency for the foreseeable future, regardless of the popular vote and the Electoral College vote tally. Republicans will keep control of the White House because Republican state legislatures will say so…. State legislatures are responsible for laws governing federal elections, unless Congress passes a national law. The independent state legislature theory contends that only legislatures can regulate federal elections — not state judges, governors, or other officials who may be otherwise delegated that authority under state law.”

State constitutions, Wehle observes, “often have stronger protections for voters than the U.S. Constitution,” but those protections will “become meaningless for policing federal elections” if the High Court agrees with the ISL in Moore v. Harper. And Moore, she says, has major “implications for presidential elections.”

READ MORE: Are SCOTUS Republicans in on a plot to end Democratic presidencies forever?

“The Electoral Count Act (ECA) of 1887 governs the process for casting and counting electors, and establishes a timeline,” Wehle notes. “States appoint presidential electors under state law based on the popular vote cast in November, and those electors have historically almost always voted in line with the state results. But the U.S. Constitution contains no requirement that a state’s electoral votes be based on actual vote totals from individual citizens. Nothing in the Constitution prevents state legislatures from independently meeting and deciding who gets the Electoral College votes from that state.”

Wehle continues, “In fact, although the ECA provides that electors cast their votes in December and that Congress convene in January to formally count them, if a state has ‘failed to make a choice’ by the December deadline, then the law holds that ‘the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.’ So, if a state legislature deems the November election a failure, it can quickly meet and decide who wins the state’s Electoral College votes — even if that means throwing out every single ballot cast in that state.”

The law professor, pointing out that hundreds of “election deniers” are “on the ballot” in the 2022 midterms, goes on to describe a disturbing scenario for the 2024 presidential election.

“Here, then, is how it all could play out: Republicans, including a majority of election deniers, win control of the U.S. House of Representatives in 2022,” Wehle explains. “The Supreme Court in Moore holds that only state legislatures can make laws governing elections — Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and possibly Brett Kavanaugh have already signaled support for the theory — unless Congress steps in, which a GOP majority in the House won’t do…. Come November 4, 2024, regardless of the popular vote, Republican legislatures will use their newly minted constitutional prerogative to decide the ‘law’ governing that state’s election for president, and give the Electoral College votes to the Republican nominee.”

Wehle adds, “Not every state will need to take this action — the flipping of the results in just one or two states with GOP-controlled legislatures could suffice to thwart the national result. The GOP-led Congress will abide by that decision in January 2025. And if the state legislatures fail to anoint a Republican president, the GOP caucus in the House of Representatives will refuse to certify the results…. The whole grim scenario seems to grow more likely with each passing day…. This Court knows that the November midterm election will decide who has power in America for a long time to come. Voters need to wake up to this reality as well — and quickly.”

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