“Yesterday, December 7, 1941—a date which will live in infamy—the United States of America was suddenly and deliberately attacked by the naval and air forces of the Empire of Japan.” -President Franklin Delano Roosevelt.
Today is Pearl Harbor Remembrance Day. It may also be the next December 7 date “which will live in infamy” in U.S. history.
The activist radical Republican U.S. “Extreme” Court has scheduled oral argument for today in the case of Moore v. Harper, the premise of which could end American democracy as we know it, and usher in a tyranny of the minority of White Christian Nationalism by Republicans who could set aside the popular vote for president, and Republican state legislatures could select a Republican slate of presidential electors to the anti-democratic Electoral College without any legal recourse. American citizens would be disenfranchised of their vote for president. Your vote for president simply will no longer matter.
The activist radical Republican U.S. “Extreme” Court chose Moore v. Harper, a case ostensibly about redistricting from North Carolina, so that it can consider the so-called “Independent State Legislature Theory,” a bogus theory without support in history, fact or law from Trump’s “Coup Memos” attorney and coup d’état co-conspirator, John Eastman. Four of the activist radical Republican justices have expressed some support for this bogus theory in the past. With one more activist radical Republican justice, they could end American democracy as we know it.
Democracy Docket has extensive coverage of Moore v. Harper and will be providing analysis. Check it out. LIVE UPDATES: U.S. Supreme Court Hears Moore v. Harper.
The Center For American Progress reports, 9 Ways the Supreme Court’s Decision in Moore v. Harper Could Harm Democracy:
On December 7, 2022, the U.S. Supreme Court will hear oral arguments in the blockbuster case Moore v. Harper. In this case, the court’s extreme conservative majority may decide to adopt a lawless theory handing state legislators potentially limitless power to manipulate rules for federal elections while undermining the hallowed right to vote. This fringe independent state legislature (ISL) theory, which even many conservative experts deem meritless, could undermine free and fair elections in several ways, threatening a giant step backward for a truly representative democracy.
As discussed at length in a recent Center for American Progress report, Moore v. Harper involves a challenge to congressional maps drawn by North Carolina’s Republican-controlled legislature. In the state proceedings, the North Carolina Supreme Court threw out the unfair maps, so the rogue politicians appealed to the U.S. Supreme Court. Invoking the ISL theory, which relies on an unreasonably narrow reading of two clauses in the U.S. Constitution, these lawmakers argue that state legislatures—and only state legislatures—have the authority to set election-related rules and draw congressional maps.
The vast majority of constitutional scholars and election law experts agree that the ISL theory is a far-fetched concept that would trample on legal precedent and constitutional principles. They correctly argue that the standard interpretation of “legislature” over several centuries broadly involves the state’s entire lawmaking process, including a governor’s signature or veto, citizen-led ballot initiatives, discretion exercised by election officials, rulings of state courts, and the parameters of state constitutions. Importantly, even high-profile conservative attorneys, judges, and scholars have repudiated the ISL theory.
If adopted, the ISL theory could uproot our fundamental system of checks and balances and put more power in the hands of extreme partisan legislators. Dangerously, at least four sitting Supreme Court justices who have been hostile to voting rights have expressed openness to the ISL theory: Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
Note: The theory first made an appearance in a concurring opinion by then-Chief Justice William Rehnquist in Bush v. Gore, the case which halted the recount in Florida in the 2000 presidential election. In an opinion joined by Justices Antonin Scalia and Clarence Thomas, Rehnquist set out his view that the state court’s recount conflicted with the deadlines set by the state legislature and thus violated the legislature’s authority under the Article II electors clause. The theory was proposed by Republican lawyer John Eastman.
There are at least nine ways that the ISL theory threatens free and fair elections:
1. Stopping state courts from protecting voters
Judges could lose their power to constrain extremist legislators from passing even more laws to suppress voters of color, unfairly count votes, or sabotage elections. For example, state courts could be prohibited from ruling on early voting rules, as state judges in Georgia recently did.
2. Ending protections against gerrymandering
Partisan legislators from either political party could rig congressional map drawing, entrenching their own power for many years, despite the popular will. In particular, bans on gerrymandering in states such as Arizona, Florida, and Ohio could be nullified.
3. Undoing pro-voter election rules enshrined in state constitutions
In some states, the constitutional right to same-day voter registration (in Michigan), automatic voter registration (in Nevada), and accessible voting places (in New Hampshire) could be on the chopping block.
4. Gutting rules passed by people-powered ballot measures
In states where voters passed ballot initiatives—for example, to allow ranked-choice voting (in Maine) and to set up independent redistricting commissions (in Arizona, California, and Michigan)—partisan legislatures could decide to ignore the popular will.
5. Limiting the discretionary authority of election officials to increase voting access
The ISL theory could prevent state and local election officials from using their discretion during emergencies, as was the case in many states, such as Pennsylvania, during the COVID-19 pandemic in order to give voters wider access to mail voting.
6. Eliminating governors’ veto rights
Governors could lose their undisputed authority to veto extreme anti-voter legislation or unfair congressional maps, a long-standing component of checks and balances. For example, earlier this year, Wisconsin’s governor stopped a wide-ranging package of anti-voter bills and vetoed unfair congressional maps.
7. Making election administration extremely chaotic
Because the ISL theory would not have any effect on the rules governing state elections, different rules for state and federal elections could make it extremely difficult to administer concurrent elections and confuse voters, including on topics such as voter registration, early voting, and voting hours.
8. Reducing people’s right to have their voices heard in state courts
Voters, including long-marginalized communities, could have fewer avenues in state court to challenge unfair election laws and lose further faith in the political system.
9. Placing Congress and the federal courts in the untenable position of being the last constitutional bulwark against rogue state legislatures
Although Congress could theoretically pass baseline standards governing federal elections and binding state legislatures, the repeated failure by Congress to pass federal legislation suggests it may not act, which could subject federal courts to massive litigation requiring interpretation of state election laws.
Conclusion
If the radical conservatives on the Supreme Court adopt the ISL theory, it may provide rocket fuel for fringe politicians to pass sweeping laws preventing fair election rules and responsive congressional maps. Instead, the Supreme Court must reject this legislative lawlessness, put people over political power grabs, and protect Americans’ fundamental rights.
The Brennan Center for Justice adds, Moore v. Harper, Explained:
What is Moore v. Harper about?
In Moore v. Harper, the Supreme Court will decide whether the North Carolina Supreme Court has the power to strike down the legislature’s illegally gerrymandered congressional map for violating the North Carolina Constitution. The legislators have argued that a debunked interpretation of the U.S. Constitution — known as the “independent state legislature theory” — renders the state courts and state constitution powerless in matters relating to federal elections.
Last year, North Carolina’s Republican-dominated state legislature passed, on a party-line vote, an extreme partisan gerrymander to lock in a supermajority of the state’s 14 congressional seats. The gerrymander was so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats. The map was a radical statistical outlier more favorable to Republicans than 99.9999% of all possible maps.
Because the U.S. “Extreme” Court has ruled that federal courts cannot hear partisan gerrymandering cases, voters contested the map in state court, contending that the map violated the state constitution’s “free elections clause,” among other provisions. In February 2022, the North Carolina Supreme Court agreed with the voters and struck down the map, describing it as an “egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
The unrepentant legislature proposed a second gerrymandered map, prompting a state court to order a special master to create a fair map for the 2022 congressional elections. Unwilling to accept this outcome, two Republican legislators asked the U.S. Supreme Court to step in and reinstate their gerrymandered map.
What has happened so far in the case?
The Supreme Court hasn’t made any substantive rulings yet. In March, the Court rejected the legislators’ emergency appeal to put the gerrymander back in place immediately. At the urging of four justices, however, the legislators filed a regular appeal asking the Court to consider whether to reinstate their map for elections after 2022. In June, the Court agreed to take up the case. The parties [filed] briefs over the summer and fall, with oral argument scheduled for December 7. The Court will likely issue its decision before July 2023.
What are the gerrymanderers arguing before the Supreme Court?
In urging the Supreme Court to reinstate the gerrymandered congressional map, the North Carolina legislators are relying on an untenable misreading of the Constitution’s Elections Clause known as the independent state legislature theory.
The Elections Clause delegates to states the power to regulate federal elections while giving Congress the overriding authority to make or alter such laws. Proponents of the independent state legislature theory — like the gerrymanderers — read the Elections Clause to give state legislators near-exclusive authority to regulate federal elections, prohibiting any other state entity — like state courts or governors — from placing checks and balances on that power. In this case, the gerrymanderers are arguing that the theory licenses them to violate the state constitution when drawing congressional maps and that the state courts do not have the power to stop them.
What’s wrong with the independent state legislature theory?
The independent state legislature theory runs contrary to the constitutional text, history, practice, and precedent. The framers famously distrusted state lawmakers, so much so that when they drafted the Elections Clause, they insisted that Congress retain the ultimate power to set the rules for federal elections. The framers would not have established — and indeed did not establish — a regime that would permit state legislatures to regulate federal elections without the ordinary checks and balances that apply to state lawmaking power. State practice, from the country’s founding to today, also refutes the theory. For example, many framers — including James Madison — voted to adopt state constitutions that regulated federal elections, as North Carolina’s does today.
On top of this overwhelming historical evidence, the theory makes no sense: it would be absurd for a state legislature to be allowed to violate the very state constitution that created it. Other problems doom the theory, as an avalanche of recent scholarship demonstrates. For these reasons, the Supreme Court has repeatedly rejected the theory for over a century, including as recently as 2015 and 2019.
The Supreme Court could decide Moore without having to address the independent state legislature theory. As we have previously explained, the North Carolina General Assembly itself enacted the state constitutional provisions that prohibit extreme partisan gerrymandering and expressly authorized state courts to review and remedy unlawful congressional maps. In other words, the state courts just did what the legislature told them to do.
Why did the Court take the case?
The Supreme Court has not explained why it decided to take the case, although that’s not unusual. However, some justice’s statements at earlier points in the case shed some light. When the Supreme Court denied emergency relief to the gerrymanderers in March, three justices — Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch — voiced support for the theory, as they had previously done in other dissenting opinions in 2020 elections cases. A fourth justice — Brett Kavanaugh — voted to leave the court-approved map in place for the 2022 elections, but he said that he saw “serious arguments” on both sides.
None of these justices, however, have had the benefit of oral argument and full briefing before formulating their perspectives. And crucially, whereas it takes five public votes for the justices to decide a case, it only takes four private votes for the Court to take a case for review. So the fact that four justices voted to hear Moore doesn’t mean that a majority is willing to endorse the unprecedented arguments offered by the state lawmakers in the case. The Court could still reject the theory and reaffirm the way our elections have worked for over two centuries.
What are the broader stakes?
The immediate issue in Moore is whether the state legislators’ extreme partisan gerrymander will stand in North Carolina. But adopting the independent state legislature theory would also mean that voters across the country have no judicial remedy — in state court or in federal court — to fight partisan gerrymandering.
The potential consequences could stretch still further. The theory would throw elections into chaos, nullifying hundreds of election rules put in place through ballot initiatives, state constitutions, and administrative regulations — including foundational state policies like the processes for voter registration and mail voting and basic guarantees like the secret ballot. State lawmakers would be able to adopt vote suppression legislation without any checks or balances from state courts or even gubernatorial veto. In other words, the theory would upend key aspects of our elections.
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