For those of you who are sensible enough not to follow all the machinations of the parts of our government that are really behaving very badly—that is, for people who’ve taken oaths to protect our democracy—the Supreme Court’s oral arguments about Moore v. Harper may not have been foremost in your minds. I understand.
So I’ll be as brief as I can here about a crucial issue.
Though the Supreme Court is supposed to hear cases based on decisions in the lower courts, particularly when different courts have issued contradictory rulings, this particular case did not wend its way via those routes. We might, silly us, think of such routes as precedents. This radical court is much more—dare I say—“liberal” in choosing their routes.
The Point Is…
There was no compelling reason for the Supreme Court to take this case, which is based not on actual case law, but on a theory. Its far-right proponents have been pushing this bit of theory since Chief Justice Rehnquist wrote a concurring opinion in Bush v Gore in 2000. Sometimes its advocates call it a “doctrine” to make it sound heftier: the Independent State Legislature Doctrine (ISL)
But it’s just a theory—and one that all but a few of the most far-right legal eagles decry as a lot of hooey. (See Brennan Center scholars’ discussion.) In fact, the Brennan Center has said this argument is:
“A breathtaking claim, and it’s made up. It’s not a ‘theory’–as NYU Law professor Melissa Murray puts it, it’s fan fiction. No state runs its affairs that way….James Madison would flip his powdered wig.“
The ISL claims that the Constitution’s reference to the word “legislatures” refers solely to the powers of the legislatures per se concerning federal elections, and not to the courts, the governors, the secretaries of state, or any other governmental bodies.
In fact, the Supreme Court has declined to consider it a number of times, including in 2015 and 2019. But the same right wing forces that kept trying to overturn Roe for years and finally succeeded continue to push this anti-democratic “theory.”
The fact that the Court is even considering it motivated the revered retired conservative judge J. Michael Luttig, whose testimony before the January 6th Committee was so compelling, to serve as co-counsel for the Democrats.
Writing in The Atlantic, Luttig called it “the most important case for American democracy in the almost two and a half centuries since America’s founding.”
If the court turns this theory into acceptable law, state legislators could, without review,
“redraw congressional districts for federal elections and…appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the state.”
That truly could mean the end of our democracy.
What gave rise to this case? The Republicans in the North Carolina legislature, a state that was evenly divided between Democrats and Republicans, drew an outrageously gerrymandered map that gave the Republicans eleven seats and the Democrats four seats.
Though the 2020 Census had given the state one more Congressional seat based on new residents who were 90 percent people of color, the legislature both failed to acknowledge this reality with a new district and eliminated a historically minority-majority seat held by a Black Representative (G.K. Butterfield).
The North Carolina Supreme Court struck down the gerrymandered map as a violation of the state’s constitution, not once, but twice. The 2022 election was held with a North Carolina Court-approved map. Republican legislators took their case to the Supreme Court. They are opposed by individual North Carolina voters who felt disenfranchised by the legislature’s maps, Common Cause, and the North Carolina League of Conservation Voters.
At stake is the potential for rogue legislators to defy their state’s Constitution as it is defined by the state’s highest courts. You see the potential disaster here.
And why should we be concerned that the highest court in the land chose to spend its time on a theory-that’s-not-a-theory? Because earlier this year, at various times, Justices Thomas, Alito, Gorsuch, and Kavanaugh had expressed great interest in it.
Not incidentally, if Thomas had even a scintilla of integrity, he would have recused himself from considering this case, which is closely aligned to the claims by one-time Trump lawyer John Eastman that state electors who supported Trump in 2020 had the right to throw out all the more abundant votes for Biden and cast their Electoral College votes for Trump.
As you may recall, that’s the issue in which Thomas’s significant other, his best friend and wife Ginni, has been deeply implicated.
So it’s not surprising that a whole lot of court watchers have been deeply worried about what the Supreme Court will do in Moore v Harper.
Although there was a great deal of trepidation before the oral arguments, an interesting thing happened when they occurred two days ago.
Marc Elias, my election law guru, wrote in Democracy Docket that Chief Justice Roberts began questioning how the Moore lawyer could justify his position in view of previous Supreme Court rulings. (Precedents!)
Then, observed Elias:
“Significantly, Justices Brett Kavanaugh and Amy Coney Barrett expressed similar skepticism. Even Justice Clarence Thomas, usually a stalwart conservative, asked tough questions of Moore’s lawyer. Indeed, one of the most striking takeaways from the argument was how little even the most conservative justices came to the Moore lawyer’s defense.
“Notably, while Justice Samuel Alito voiced support for the Moore parties’ position, even he expressed some reservations. In the three-hour argument, it was only Justice Neil Gorsuch who seemed entirely comfortable with the Moore lawyer’s argument.”
Based on the questions, Elias (and others) have the sense that the majority on the court is seeking a “middle ground,” where they won’t endorse the theory but will say that “state courts could review state laws regulating federal election rules for compliance with state constitutions, but would need to adhere to the text of those constitutions in doing so.”
To Elias, such a potential ruling would mean that
“state court election law decisions would be subject to an additional question. Did the opinion fairly reflect state law and the state constitution? While this would create new vehicles to attack pro-democracy court decision, in practice it would more likely lead to longer, more carefully written state court decisions rather than change the outcome in many cases.”
Does that mean the Court may decline to accept the ISL unreservedly, but allow the gerrymandered map that the North Carolina legislators drew over the objections of their state Supreme Court to stand?
If that’s the result, the Supreme Court Justices will have sacrificed the voting rights of Black North Carolinians while avoiding a much more far-reaching democratic catastrophe.
Though Elias cautions that the questions Justices ask aren’t always determinative, he felt that nearly all the Justices were seeking a way to avoid outright acceptance of the ISL and its dangerous implications.
Considering the damage that the Supreme Court could (can) do with this case, I guess we can be hopeful that in this instance they don’t seem as radical as we might fear.
But the case also reaffirmed how essential it is to our struggling democracy to pass Congressional voting rights legislation that doesn’t pretend—as Roberts claimed in beginning the rollback of the Voting Rights Act—that such protections against racial disenfranchisement are no longer needed.
How long must people of color–some of the most stalwart defenders of our democracy–wait for their government to confirm the sanctity of their votes, regardless of where they reside?
What do you think? Are the Justices who seem to be in the middle in this case—Roberts, Kavanaugh, and Barrett—showing they really do care how poorly most Americans view the Court? Or is this one case just a bridge too far?