by Laurence H. Tribe and Dennis Aftergut
The Supreme Court’s extremist justices are aiming their next dagger at the heart of the entire democratic enterprise: voters’ right to pick leaders of their choice.
Last Thursday, the court announced that 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 probably give Republicans control of 11 of 14 congressional districts in the state.
North Carolina’s Supreme Court rejected the maps because they violated the state constitution in illegally favoring Republicans. While the Moore case involves legislative districts, how we choose presidents is in the court’s sights. More on that in a moment.
In Moore, Republican state legislators petitioned the U.S. Supreme Court, advancing a debunked right-wing doctrine innocuously labeled the “independent state legislature” theory. It maintains that state courts can play no role in overseeing their legislatures in federal election matters.
Hence, according to this baseless notion, state legislatures can do whatever they want in manipulating elections no matter how extreme the results — principles of voter equality and fairness be damned, along with the state’s constitution, its governor and its courts.
Four justices — Neil Gorsuch, Clarence Thomas, Samuel Alito and Brett Kavanaugh — had previously signaled support for this 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 the independent legislature theory purports to rely on is directly at issue in the Moore case. The Constitution’s elections clause provides: “The Times, Places and Manner of holding 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 state courts’ final authority to overturn improper districting decisions. The state’s General Assembly has even detailed the findings courts must make, how and where such challenges must proceed, and the courts’ authority to impose an alternative map. Using the independent legislature idea to throw aside North Carolina’s election law would, therefore, violate the elections clause itself.
No less fundamental, the U.S. Constitution’s Article 5 guarantees each state “a republican form of government.” In a republic, the people elect their representatives to make the law. That fundamental principle would lose all meaning if the Supreme Court decided to shred state constitutional provisions governing state election laws.
Going into this November’s elections, 30 state legislatures are firmly in Republican hands, including in most of the battleground states that determine presidential election outcomes. Adopting the independent state legislature theory would amount to right-wing justices making up law to create an outcome of one-party rule.
Look at Pennsylvania, a key battleground state. In March, the Supreme Court declined to block a Pennsylvania state court decision striking down Republican-drawn gerrymandered congressional maps. If the conservative justices adopt the independent legislature idea, such long-standing oversight would be stripped from the state’s courts.
Constitutional textualists such as former federal Judge J. Michael Luttig, the preeminent conservative jurist, already see what lies ahead.
Luttig recently wrote that the pushers of this debunked theory would also seek to apply it to presidential elections to “ ‘steal’ from Democrats the presidential election in 2024.” Those pressing the idea claim that state legislators may ignore the people’s vote — not to mention the state judiciary and state election procedures that the legislators have themselves enacted into law — because the Constitution’s electors clause directs each state to “appoint” electors “in such Manner as the Legislature thereof may direct.”
Our freedom to govern ourselves is at stake if the conservative justices embrace 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 state’s people. Arizonans and West Virginians must prevail on Sens. Kyrsten Sinema and Joe Manchin to end their resistance to eliminating the filibuster on that bill. The Constitution gives Congress the power to set elections rules nationally for federal elections, no matter what any renegade state legislature might try to do.
Voters can also elect state legislators committed to respecting the will of their constituents, regardless of the gimmicks dangled in front of them by autocrats posing as lawyers.
Keeping our power as citizens to choose our leaders and keeping our republic are one and the same. We need to recognize the great peril we now face and speak out fiercely against what we can foresee unfolding in state legislatures and on the Supreme Court.
