'An existential threat': Legal expert breaks down the Supreme Court case that could radically reshape US elections

30 November 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 and redistricting in North Carolina as well as a far-right legal idea known as the independent state legislature theory (often abbreviated as ISL). It is the ISL part that has civil libertarians especially worried; the ISL, in its most severe form, argues that only state legislatures should be allowed to govern the administration of elections in individual states — not governors, not judges, not state supreme courts.

The U.S. Supreme Court has rejected the ISL over the years. But civil libertarians and legal experts fear that if the radical-right 2022 edition of the High Court accepts the ISL as valid, it could have dire consequences for democracy in the United States. Imagine a scenario in which a Democratic presidential candidate wins Wisconsin, for example, in 2024 or 2028 but MAGA Republicans in the Wisconsin State Legislature want to give the state’s electoral votes to the Republican nominee who lost; such a scenario, according to civil libertarians and experts on constitutional law, is not far-fetched if the High Court accepts the ISL in its most radical form.

Moore v. Harper isn’t about former President Donald Trump per se. But in an article published by The Atlantic on November 29, legal expert Quinta Jurecic (who is a fellow at the Brookings Institution) emphasizes that the case reflects the influence of Trump and his MAGA movement.

“At the center of Moore is a ruling by the North Carolina Supreme Court throwing out an aggressively gerrymandered congressional map put together by the state’s Republican legislature, which the Court found violated the state constitution,” Jurecic explains. “The GOP lawmakers are now challenging that ruling before the Supreme Court, arguing that, under the independent state legislature theory, the state court lacked the authority to involve itself in the legislature’s work…. The Constitution gives states the power to decide how they select members of Congress and pick presidential electors.”

Jurecic continues, “Proponents of the independent state legislature theory build their argument around the fact that the specific constitutional text in question refers not to states generally, but instead, to ‘the legislatures thereof.’ Thus, they argue, when administering federal elections, state legislatures are, to some extent, exempt from normal constraints; under this theory, other state-level entities, such as courts and election officials, would be restricted in their ability to check the legislature or act without its approval…. Moore involves only the constitutional language concerning the selection of members of Congress, but a Supreme Court ruling adopting some iteration of the independent state legislature theory could shape how federal courts understand state administration of presidential elections as well.”

The ISL, Jurecic notes, is highly controversial in legal circles. For example, Eric Holder, who served as U.S. attorney general under President Barack Obama, has warned that Moore — depending on how the High Court rules — could pose “an existential threat to our democracy.” And Rick Hasen, an expert on election law, has warned that “a muscular reading of the independent state legislature theory would provide a fig leaf for state legislators to try to reverse presidential election results and overturn the will of the people in a presidential election.”

Jurecic points out that “Trump’s attempted coup in 2020 depended in part on a bizarre overextension” of the ISL.

“John Eastman, the legal scholar advising Trump on the president’s efforts to overturn the election, proposed, in a now-notorious memo, that the Constitution provided legislatures in swing states with the power to simply toss out (Joe) Biden electors in favor of slates supporting Trump,” Jurecic observes. “Eastman himself has filed an amicus brief in Moore, though it is far less outrageous — adopting the maximalist view of the independent state legislature theory instead of his previous, even more extreme interpretation.”

Jurecic wraps up her piece by writing that “the picture is not entirely bleak” when it comes to Moore v. Harper and the wellbeing of U.S. democracy.

“The results of the 2022 midterms substantially limited the ability of election deniers to upend the 2024 presidential vote: Swing-state voters rejected Trump-backed candidates for governor and secretary of state who had expressed a willingness to meddle with elections going forward,” Jurecic explains. “And if the lame-duck Congress can pass reforms to the Electoral Count Act, the statute that governs Congress’ certification of the electoral vote and that Trump sought to exploit on January 6, this would close off avenues for rogue state legislatures operating under an extreme understanding of the independent state legislature theory to disrupt the 2024 certification. Still, Moore is a reminder of just how wobbly the guardrails protecting American democracy have become.”

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