Come December 7th, democracy is on the chopping block. That is the day the U.S. Supreme Court will hear oral arguments in a case that could turn America’s free and fair elections on their head.
The Court’s decision in June to hear Moore v. Harper could have potentially devastating effects on our elections by further enabling anti-democratic activities, including partisan gerrymandering, voter suppression techniques, and the outright subversion of the will of the people. What is deeply concerning is that the conservative block of Justices—Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Roberts—may very well endorse this.
Specifically, the issue is whether the North Carolina Supreme Court has the power to strike down the state legislature’s gerrymandered congressional map for violating the North Carolina Constitution. Petitioners argue that state courts should have no power to overturn federal election rules put in place by state legislatures based on a radical and discredited interpretation of The U.S. Constitution, known as the “independent state legislature (ISL)” theory.
The basic argument behind this fringe legal theory is that Articles 1 and 2 of The Constitution grant state legislatures unfettered power to decide the rules of federal elections with no checks and balances or judicial oversight. Article 1 states that legislatures can prescribe the time, place, and manner of congressional elections, while Article 2 states that the state legislature can direct the appointment of state electors in presidential elections. In essence, this theory is a radical interpretation of language that no average reader, nor the framers, would ever have understood The Constitution to state.
Today, if a state legislature passes a law, it is subject to various checks and balances by the courts or governor. If the Supreme Court buys into this extremist theory, state legislatures would wield exclusive power to create federal election rules in their states that favor their own party without the usual oversight or intervention from courts, governors, or other state officials.
This lack of oversight would give legislators free rein to gerrymander districts and pass voter suppression laws to guarantee their party wins. Independent redistricting commissions and mail-in voting processes could be struck down, and guarantees like secret ballots could disappear overnight. In the most severe case, the Court’s endorsement of this theory could catapult elections into chaos as state legislatures willfully ignore their state’s popular vote in favor of their desired party.
Not only is this theory morally wrong, but it is also a direct attack on our fundamental democratic process and ideals. First, the framers of The Constitution would never have wanted such highly concentrated independent power in a single branch of state government. Second, there is no basis in our 150+ years of elections that lays the foundation for this theory.
The bottom line is that those pushing the ISL theory are making a power grab. Republicans in recent history have slowly increased control of state legislatures across the country, and a Court decision in favor of ISL theory would concentrate incredible power in their hands. With this unrestricted power, state legislators could subvert federal election results before the election occurs through extreme partisan gerrymandering and voter suppression laws. They could also overturn the results after voting is complete by questioning the validity of results without any signs of fraud, nullifying valid ballots, and sending a different slate of electors. With this theory in place, the party in power could very well never lose an election again, even if they lose the popular vote.
While many people question how ISL theory has seemingly appeared out of the blue, in reality, conservatives have been carefully laying the groundwork for December 7th for over two decades.
Mentions of this theory first emerged in the 2000 presidential election of Bush versus Gore, when the Bush legal team incorporated ISL in its argument that the Florida Supreme Court should not have the power to dispute a law passed by the Florida state legislature. Another usage of the doctrine appeared in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which the Republican-led state legislature sued the independent commission tasked with preventing partisan gerrymandering. Arizona was essentially suing its own constituents’ desire for oversight. Although the liberal majority on the court were in favor of the commission, Justices Roberts, Scalia, and Thomas wrote a resentful dissenting opinion, a troubling indicator of how the conservative justices will likely approach the upcoming case.
Most recently, during the 2020 election, the conservative Supreme Court supported this theory when it overruled Wisconsin’s district court’s ruling that allowed for an extended deadline for mail-in ballots due to COVID. Justices Gorsuch, Kavanaugh, and Roberts concurred that state legislatures, not federal judges, state judges, state governors, nor other state officials, bear primary responsibility for not only setting election rules, but altering them as they see fit.
This theory even served as part of the backdrop to Trump and MAGA Republicans’ “stop the steal” campaign and the January 6th insurrection. Behind the madness, if there was any hint of legal forethought in Trump’s claims, ISL theory was it. He believed, or perhaps just touted, that in states where he lost the popular vote, Republican state legislatures could submit separate electoral slates, and Vice President Pence could have certified those “fake” electors instead. Had his coup succeeded, he would have won the electoral college vote. Should the Supreme Court favor ISL theory come December, Trump’s dream of overturning the election results could very well become a reality in 2024.
Although the Republican National Committee’s amicus brief in support of the ISL theory asserts that the doctrine could not be used to overturn valid election results, this is clearly an attempt to lull Americans into complacency. As discussed in 5-4’s latest podcast episode, when readers look closer at the phrasing, specifically the word “valid,” they realize that Republicans are actually planning to question the validity of elections if they don't like the results, then use this theory as their “legal” framework, exactly like they did in 2020. Except this time, if the Supreme Court is in their favor, they will likely be successful.
The Supreme Court only chooses to hear around 100 cases from the 7,000 it receives per year, and since it chose to hear this previously debunked theory, it is not at all out of the question that they will rule in favor of ISL.
What is most frightening is the lack of awareness around this issue among the general public and the naive belief that the Court wouldn't dare overturn precedent and rewrite how elections are run in this country. Many of us made a similar mistake when we said that Roe v. Wade would never be overturned.
We cannot ignore these warning signs again. We must protect our democracy.