The Justices Weigh Democracy

Susan Sullivan Lagon | November 2, 2022

Every even-numbered year in the U.S., some politician or pundit will proclaim that “this is the most important election in our lifetimes!” This news is often met with yawns by the weary public, even among those who bother to vote. But when a respected appellate court judge declares that a case pending before the U.S. Supreme Court is “the most important case for American democracy in the almost two and a half centuries since America’s founding,” it raises eyebrows. When that judge is a Republican described as a staunch conservative with years of experience on the U.S. Court of Appeals for the 4th Circuit and he categorically rejects a theory gaining popularity within his own party, it merits careful attention.

Moore v. Harper

The case is Moore v. Harper, docketed for oral argument before the Supreme Court in December.

It invokes the “independent state legislature” theory (ISL), which Judge J. Michael Luttig has referred to as the “Republican blueprint to steal the 2024 election.” Whatever the outcome, the case will have a profound impact on how congressional elections are conducted and how presidential electors are chosen.

At issue are two provisions in the U.S. Constitution: Article I, section 4, clause 1: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof….” and Article II, section 1, clause 2: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….” ISL posits that these powers belong solely to state legislatures—only to state legislatures, — not subject to a governor’s veto, or ballot initiatives, or certification by a secretary of state or election board, or review by the state courts, or even compliance with the state’s constitution. Adopting this radical interpretation would be a major departure from historic practice and judicial precedent.  Given the critical mass of 2020 election deniers running for state legislative office in battleground states, this is no mere intellectual exercise.

 ISL and the larger voting environment

The once-fringe theory was resuscitated following the 2020 election when then-President Donald Trump refused to accept that he lost. His election lawyer, John Eastman, led the charge to have state legislatures come up with “alternate” slates of presidential electors rather than those duly certified by the secretaries of state and submitted to a joint session of Congress to be formally counted by the Vice President. It was Vice President Mike Pence’s refusal to reject the electors chosen properly by the popular vote in each state that outraged Trump and prompted the January 6, 2021 siege on the U.S. Capitol that killed seven, injured dozens, and horrified millions.

Despite five dozen cases in which courts dismissed Trump’s claims as completely baseless, that hasn’t stopped Trump and a growing number of Republicans from trumpeting “The Big Lie” that the election was “stolen.” Eastman, for his part, is now urging so-called “election integrity units” bankrolled by right-wing donors to challenge the outcomes of the 2022 midterm elections. If “poll watchers” (some armed and in tactical gear) aren’t enough to intimidate voters before the election, threats to election officials and legal challenges after Election Day provide another avenue to assert bogus claims of election fraud in hopes of changing the results of free and fair elections. More than a hundred lawsuits have already been filed, the vast majority by Republicans challenging rules for early voting, voting machines, counting mail-in ballots, same-day voter registration, access for poll watchers, and monitors for ballot counting.

Facts of the Case

Moore v. Harper has nothing to do with presidential electors but it puts ISL squarely before the U.S. Supreme Court. Following the 2020 census, the North Carolina state legislature devised a redistricting map that locked in 10 of the state’s 14 congressional districts for Republicans. In February 2022, the NC Supreme Court found it to be such an “egregious and intentional partisan gerrymander” that it violated the free elections clause in the state’s constitution. The legislature’s second attempt met the same fate, resulting in the court ordering special masters to create a fair map for the 2022 cycle. Undaunted, some NC legislators asked the U.S. Supreme Court to intervene and reinstate their gerrymandered map. In March, the Supreme Court rejected the emergency appeal but Justices Alito, Thomas, and Gorsuch suggested their support for ISL, whereupon the legislators (including NC Speaker Timothy Moore) filed a regular appeal to reinstate their map after the 2022 elections. In June, the Court agreed to hear their case.

Supporters v. Opponents of ISL

ISL’s supporters insist they are merely applying the plain wording in the Constitution and that “legislature” means exclusively the legislature. But such a narrow reading would contradict core tenets of American democracy such as separation of powers (by denying any role for the other two branches), federalism (judicial review of state actions by state courts is a reserved power), and Article IV’s guarantee of a republican form of government in the states (popular sovereignty and majoritarian control as expressed by James Madison in Federalist 39.) Justices who routinely look to the Founders’ “original intent” when interpreting the Constitution would be hard pressed to explain why the “Time, Places and Manner” clause concludes with “but the Congress may at any time by Law make or alter such Regulations…” if the Founders intended that state legislatures have unfettered power over election law.

Critics see ISL as a brazen, undemocratic attempt by state legislatures to overturn the popular will. The idea that election law is somehow exempt from complying with the state constitution that created the state legislature in the first place defies logic. In 2015, ISL was deployed (unsuccessfully) in a Supreme Court case that attempted to destroy Arizona’s independent redistricting commission. What’s changed since then, of course, is the composition of the Court. While the Court could reject the theory once and for all, it’s unlikely they agreed to hear it just to put a stake in its heart.

Potential consequences

The number of amicus curiae (friend of the court) briefs filed in Moore v. Harper that oppose ISL demonstrates just how high the stakes are. Twenty Democratic senators led by Amy Klobuchar (D-MN)  filed a brief urging the Court to respect checks and balances. Thirteen Secretaries of State led by Jena Griswold of Colorado warned that “upending the role of state courts in interpreting state election laws could unsettle established case law in the states.” The NAACP’s Legal Defense Fund (LDF)’s brief cautioned, “If the Supreme Court adopts the independent state legislature theory, it would potentially unleash a tidal wave of increasingly suppressive and discriminatory voting laws that would largely go unchecked…” The liberal Brennan Center for Justice saw fit to post an animated short video (along with congressional testimony) illustrating the potential dangers of ISL. The reason for selecting this case and its ruling are, as yet, unknown.  But the surrounding environment for voting rights is problematic enough for our democracy without the Supreme Court possibly affirming ISL.

Susan Sullivan Lagon is a Nonresident Senior Fellow at the Government Affairs Institute

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