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About a year ago, former U.S. Court of Appeals Judge J. Michael Luttig, a giant in conservative legal circles, wrote a bold and widely read op-ed, warning Americans that Republicans would try to steal upcoming elections — and describing the tool that GOP officials would use to execute their plot.
Reflecting on the 2020 scheme crafted by Donald Trump and his team, Luttig made the case that the cornerstone of the Republican plan would involve having the U.S. Supreme Court endorse an idea called the “independent state legislature” doctrine.
This may sound complicated, but it need not be: State legislatures don’t have sole authority over elections. There are election laws, constitutional limits, elections procedures, and courts that help dictate the process. But under the so-called independent state legislature doctrine, legislators would have broad power to bypass those other checks and act unilaterally.
It was this same idea that lost at the Supreme Court this morning. NBC News reported:
The Supreme Court on Tuesday declined to impose new limits on state courts reviewing certain election-related issues by ruling against Republicans in North Carolina fighting for a congressional district map that would heavily favor their candidates. The justices ruled in a 6-3 vote that the North Carolina Supreme Court was acting within its authority in concluding that the map constituted a partisan gerrymander under the state Constitution.
The full ruling in Moore v. Harper, authored by Chief Justice John Roberts, is online here.
For democracy advocates, the developments brought a sigh of relief. Barack Obama, for example, published a Twitter thread this morning, celebrating the fact that the court’s majority “rejected the fringe independent state legislature theory that threatened to upend our democracy and dismantle our system of checks and balances.”
The former president added, “This ruling rejects the far-right theory that threatened to undermine our democracy, and makes clear that courts can continue defending voters’ rights — in North Carolina and in every state.”
Or as the headline on a Washington Post analysis summarized today, “Democracy survives another day.”
That is, to be sure, a development worth feeling good about. That said, as my MSNBC colleague Jordan Rubin explained in his report this morning, the outcome was not unanimous: Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
Their opposition admittedly gets a little complicated. In light of developments with the North Carolina Supreme Court, there was some uncertainty about whether the litigation was still valid, and the dissenters argued that the case was moot. But as NBC News’ report added, Thomas didn’t quite stop there.
Thomas complained that the decision will lead to further confusion in lower courts that could give rise to more cases like the Supreme Court’s own Bush v. Gore ruling issued in 2000, which ultimately led to Republican George W. Bush taking office as president. The court, Thomas said, “opens a new field for Bush-style controversies over state election law — and a far more uncertain one.”
Justice Brett Kavanaugh, meanwhile, wrote a concurring opinion of his own that suggested the high court might yet revisit the scope of state court election authority “in the future.”
In other words, democracy won today, but elements of the larger debate still linger — even if they shouldn't.
This post revises our related earlier coverage.