The extremist Supreme Court justices are pointing their next dagger at the heart of the entire democratic enterprise: the right of voters to choose the leaders of their choice.
On Thursday, the court announced it will hear Moore v. Harper, a North Carolina case involving gerrymandered congressional district maps drawn by the state’s Republican-controlled legislature. Those maps would likely give Republicans control of 11 of the state’s 14 congressional districts.
The North Carolina Supreme Court rejected the maps because they violated the state Constitution by illegally favoring Republicans. While the Moore case involves legislative districts, how we choose presidents is on the court’s radar. More on that in a moment.
In Moore, Republican state legislators petitioned the United States Supreme Court, advancing a debunked right-wing doctrine innocuously labeled the “independent state legislature” theory. He argues that state courts can play no role in overseeing their legislatures when it comes to federal elections.
Therefore, according to this baseless notion, state legislatures can do whatever they want to manipulate elections, no matter how extreme the results – the principles of voter equality and fairness be damned, as well as the constitution of the state, its governor and its courts.
Four justices – Neil Gorsuch, Clarence Thomas, Samuel Alito and Brett Kavanaugh – had previously signaled their support for the idea. One more justice would provide a majority to give state legislatures absolute control of electoral votes in presidential elections.
One of the two constitutional provisions on which the independent legislature theory purports to rest is directly at issue in Moore. The Elections Clause of the Constitution states: “The times, places, and manner for the holding of elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”
Yet in North Carolina, the legislature itself expressly specified that the “manner” of holding elections would include the final authority of state courts to overrule improper precinct decisions. The state’s General Assembly has even detailed what findings the courts must make, how and where such challenges must proceed, and the power of the courts to impose an alternative map. To use the idea of an independent legislature to defeat North Carolina’s election law would therefore violate the election clause itself.
And even in states whose legislatures have not specifically assigned their courts a role in elections, any decision granting lawmakers alone unfettered electoral authority would contradict our entire constitutional system. It would wrench the 50 state legislatures from their moorings in the state constitutions that create those legislatures and limit their authority within three branches of state government. Such detention would commandeer state constitutions, the ultimate repository of power that the 10th Amendment “reserves to the states or the people, respectively.”
No less fundamental, Article IV of the American Constitution guarantees to each state “a republican form of government”. In a republic, the people elect their representatives to make the law. This fundamental principle would become meaningless if the Supreme Court decided to strike down the state constitutional provisions governing state election laws.
As the November election nears, 30 state legislatures are firmly in Republican hands, including most of the battleground states that determine presidential election results. Adopting the independent state legislature theory would be tantamount to right-wing judges crafting laws to create a one-party rule outcome.
Take Arizona. In 2015, a 5-4 Supreme Court decision upheld the state’s nonpartisan redistricting system, which voters adopted on their own initiative, empowering an independent body to draw electoral districts. Now, under the independent legislature theory, the court could strike down Arizona’s nonpartisan agenda because the state Constitution allowed voters to legislate elections.
Then look at Pennsylvania, a key battleground state. In March, the Supreme Court refused to block a Pennsylvania state court ruling overturning Republican-drawn congressional maps. If conservative justices embrace the idea of an independent legislature, such longstanding oversight would be removed from state courts.
Constitutional textualists such as former federal judge J. Michael Luttig, the prominent conservative jurist, already see what lies ahead.
Luttig recently wrote that proponents of this debunked theory would also seek to apply it to presidential elections to “‘steal’ the 2024 presidential election from the Democrats.” Those who support the idea claim that state legislators can ignore the vote of the people — let alone state court and election procedures that the legislators themselves have enacted — because the Constitution’s Voters Clause directs each state to “appoint” electors “in such a manner”. as the legislature thereof may order.
Our freedom to govern ourselves is at stake if conservative justices adopt this theory.
One possible defense is for Congress to enact the John L. Lewis Voting Rights Act, which could be invoked to defeat the way the independent legislature theory disenfranchises the people of the state. The people of Arizona and West Virginia must convince the senses. Kyrsten Sinema and Joe Manchin to end their resistance to eliminating the filibuster on this bill. The Constitution gives Congress the power to set nationwide voting rules for federal elections, no matter what any renegade state legislature might try to do.
Voters can also elect state legislators determined to uphold the will of their constituents, regardless of the gimmicks wielded before them by autocrats posing as lawyers.
Keeping our power as citizens to choose our leaders and keeping our republic are one and the same thing. We must recognize the great peril we now face and fiercely speak out against what we may foresee unfolding in state legislatures and the Supreme Court.
Laurence H. Tribe is Carl M. Loeb University Professor Emeritus at Harvard Law School. Dennis Aftergut, a former federal prosecutor, is currently counsel for Lawyers Defending American Democracy.