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Supreme Court Hears Arguments on Election Law Case with Implications for Democracy Itself

U.S. News & World Report 12/7/2022 Kaia Hubbard
The US Supreme Court in Washington, DC, on December 4, 2022. (Photo by Daniel SLIM / AFP) (Photo by DANIEL SLIM/AFP via Getty Images) © (DANIEL SLIM/AFP via Getty Images) The US Supreme Court in Washington, DC, on December 4, 2022. (Photo by Daniel SLIM / AFP) (Photo by DANIEL SLIM/AFP via Getty Images)

As the Supreme Court wrapped its last term this summer, capped by a slew of rulings that seemed to trouble large swaths of the public who decried the conservative majority’s latest moves, the justices quietly announced they would take up another case with the potential to go even further.

That case was Moore v. Harper, an election law case involving a fringe legal theory that some have warned threatens democracy itself.

The justices are set to hear oral arguments on Wednesday over the case, which experts have argued could dramatically reshape elections and upset the separation of powers relied upon by American government by giving state legislators unilateral power to set election rules.

The case, which arose from a North Carolina dispute over the drawing of congressional maps, hinges on an idea known as the “independent state legislature” theory. The theory employs an extremely literal reading of the Constitution and effectively asserts that state legislatures should be the final word on elections rules – leaving out state courts and governors.

When the North Carolina Supreme Court turned down a new congressional map at the request of a group of Democratic voters who argued that it was a partisan gerrymander, Republican state lawmakers went to the U.S. Supreme Court on an emergency basis, arguing that the court violated the elections clause of the Constitution, which says that the “times, places and manner of holding elections” should be determined by state legislatures.

“The question presented here goes to the very core of this nation’s democratic republic: what entity has the constitutional authority to set the rules of the road for federal elections, the means we use to ‘exercise self-government,’” the Republican lawmakers wrote in the emergency application.

But giving state legislatures unilateral power, some have argued, runs the risk of allowing lawmakers to gerrymander without oversight or even disregard their popular vote and appoint their own electors in an attempt to overturn election results, spurring a critical threat to democracy ahead of the 2024 presidential election.

Among those warning of the case’s major implications for American democracy is former Attorney General Eric Holder, who said on CBS’ “Face the Nation” on Sunday that he is “extremely concerned” about the possible outcome of the case.

“This is a very, very dangerous theory,” he said. “It would put our system of checks and balances at risk.”

Marc Elias, a top Democratic election lawyer, told MSNBC on Saturday that the stakes “couldn’t be higher.”

“This fringe theory would say that state courts are not free to apply their state constitutions when reviewing laws passed by the legislature that involve federal elections,” Elias said. “This would essentially turn off state courts’ abilities to police the worst kind of voter suppression and election subversion.”

Even some conservatives have urged the high court not to embrace the legal theory. J. Michael Luttig, a retired federal judge appointed by George H.W. Bush, recently signed on as co-counsel for those in opposition to the legal theory and described the proceeding as “the most important case for American democracy in the almost two and a half centuries since America’s founding” in The Atlantic earlier this year.

But the legal theory has a list of supporters as well, including John Eastman, an attorney who worked with former President Donald Trump in his effort to overturn the 2020 election. Eastman filed a brief asking the high court to embrace the independent state legislature theory.

A slew of litigation in state courts over rules administered in 2020 to expand accessibility to voting during the coronavirus pandemic seemed to reinvigorate the legal theory, as it became the basis of Republican challenges to pandemic-era voting rules and later was central to Trump’s effort to overturn the results of the 2020 presidential election.

In a 2020 opinion related to a Wisconsin election case, Justice Neil Gorsuch – joined by Justice Brett Kavanaugh – seemed to hint at support for the legal theory, writing that “the Constitution provides that state legislatures – not federal judges, not state judges, not state governors, not other state officials – bear primary responsibility for setting election rules.” 

Then in March, the high court declined to grant the Republican request for an emergency stay of the North Carolina Supreme Court order but decided to hear arguments over the case. Though he didn’t plainly endorse the theory, Justice Samuel Alito wrote in a dissenting opinion joined by Justice Clarence Thomas and Gorsuch that the case represented “an exceptionally important and recurring question of constitutional law.”

“If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections,” Alito wrote. “I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”

Indeed, it’s a question that goes far beyond the North Carolina case at issue and one that this batch of justices, with a GOP supermajority, appear eager to answer.

With the apparent interest in the legal theory from four justices, the case’s future may be up to Justice Amy Coney Barrett, unless her conservative colleagues have second thoughts.

Some have argued that a ruling in favor of the legal theory would give more power immediately to Republicans, who control more statehouses than Democrats. It would also likely deliver enormous power to the GOP supermajority on the high court, giving it the final say over all election law disputes arising in states, bypassing state courts. Every election in a state could ultimately be decided by the high court.

According to a report from the government watchdog group RepresentUs, if the Supreme Court backs the theory, more than 200 provisions in state constitutions related to voting could be at risk, including absentee voting, voter ID requirements, and Ranked Choice Voting.

The major case – perhaps the most consequential of the term – comes as the justices have been embroiled in a legitimacy crisis in recent months.

Months after the justices handed down rulings on abortion, guns, the environment and religious liberty, the public’s approval and confidence in the institution is reeling.

A record low 47% of Americans surveyed in September say they have at least a fair amount of trust in the judicial branch, headed by the Supreme Court, down 20 percentage points from two years ago, according to Gallup polling.

Meanwhile, the disclosure that the wife of Justice Clarence Thomas, among the most conservative on the bench, encouraged multiple individuals to take efforts to overturn the 2020 presidential election has added to Democrats’ concerns about a politicized high court, while a leak of the draft opinion that would ultimately overturn Roe v. Wade, and more recent reports of additional leaks of cases concerning related issues, has inspired concern about the high court more broadly – and its ability to fulfill its role as the arbiter of the law and guardian of the Constitution.

Copyright 2022 U.S. News & World Report

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