What, asks the majority of Americans, could possibly be worse than that? The answer is a case called Moore v. Harper. At issue is a dubious constitutional argument heretofore relegated to the extreme outlying precincts of the authoritarian wing of the Republican Party. If endorsed by the Supreme Court, this “Independent State Legislature” theory would open the door to dramatically changing our elections, including allowing state legislatures to overturn the popular will and substitute their own slate of presidential electors for those chosen by the people.
The Constitution authorizes the states to administer federal elections, subject to Congressional overrule. The question arises as to the meaning of that delegation. The Elections Clause (Article I, §4) states: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, ….. In addition, the Presidential Electors Clause (Article II, §1, Clause 2, states: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….
The debate conjured by Trumpian zealots intent on stealing future elections turns on the word “legislature.” Both general understanding and Court precedents going back many years is that it refers to a state’s general lawmaking processes, including not only legislative action, but also whatever a state’s constitution says about subjecting legislation to a governor’s veto, a voter referendum, and state court action to ensure that legislative enactments comply with the state constitution.
Would be election thieves argue that these federal constitutional clauses give state legislatures exclusive authority to regulate federal elections, period. In practice, this would mean that state legislatures could not be stopped by whatever the state constitution says about a governor’s veto, a citizen referendum or a state court’s authority to approve or disapprove legislation.
If the Independent State Legislature theory had been effective in 2020, Donald Trump would have been able to steal the election and stay in the White House despite having been stomped by Joe Biden in both the popular vote and Electoral College. If the Supreme Court endorses this theory, it would allow Republicans to run roughshod over the will of voters. Should Trump somehow weasel out of his mounting legal challenges, is not yet strung up, is not behind bars, and runs for president in 2024 and loses, no big deal. Republican state legislatures could ignore the popular vote and legitimate electors and legally substitute their own slates of sham electors.
Of lesser concern, but still a huge problem, state legislators would have carte blanche to gerrymander and suppress the vote as contemptibly as possible without any opportunity for opponents to challenge their nefarious machinations in court.
The fate of our democracy has never before been threatened by any Supreme Court case or decision in our history. Moore v. Harper does that, and has a good chance of establishing this preposterous and dangerous theory that makes a mockery of Checks and Balances and the rule of law. Three current Supreme Court Justices—Alito, Gorsuch and Thomas (of course)--In various dissents and concurrences, have already signed on to the Independent State Legislature hooey. Two more and you can say so long to future free, fair and honest elections, not to mention American democracy.
October 14, 2022