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Supreme Court to consider radical independent legislature theory

The Supreme Court has agreed to consider a case about the so-called “independent state legislature” doctrine. For democracy, that's not good news.


A few months ago, former U.S. Court of Appeals Judge J. Michael Luttig, a giant in conservative legal circles, wrote a surprisingly bold, and widely read, op-ed. In his piece for CNN, the jurist, who has spent much of his adult life operating “at the top of the conservative legal world,” warned Americans that Republicans would try to steal upcoming elections.

Luttig’s warning even described the tool that GOP officials would use to execute their plot.

Reflecting on the scheme crafted by Donald Trump and his team, Luttig made the case that the cornerstone of the Republican plan was to have the Supreme Court endorse an obscure idea called the “independent state legislature” doctrine, which, according to the plot, would make it possible to overturn the election results by allowing then-Vice President Mike Pence to reject certain states’ electoral votes.

“The independent state legislature doctrine says that, under the Elections and the Electors Clauses of the Constitution, state legislatures possess plenary and exclusive power over the conduct of federal presidential elections and the selection of state presidential electors,” Luttig explained. “Not even a state supreme court, let alone other state elections officials, can alter the legislatively written election rules or interfere with the appointment of state electors by the legislatures, under this theory.”

This may sound complicated, but it need not be: State legislatures don’t have sole authority over elections. There are state laws, state constitutions, state elections procedures, and state courts that help dictate the process. But under the so-called “independent state legislature” doctrine, legislators would have the power to bypass those other checks and act unilaterally.

All of this took on dramatic significance yesterday. NBC News reported:

The Supreme Court agreed on Thursday to decide whether legislatures, not state courts, have final authority to decide how elections for federal candidates are conducted, taking up a challenge over North Carolina’s new congressional map. Republican legislators are challenging a state Supreme Court ruling that threw out the legislature’s map for redrawing congressional district boundaries following the latest census. The court said the map was excessively partisan and violated the state constitution by failing to reflect North Carolina’s general political party makeup.

Again, I can appreciate why the details of the litigation might sound dry and technical, but it’s important to understand the underlying principles at stake in Moore v. Harper.

Rick Hasen, a professor and an election law expert at the University of California at Irvine, told NBC News that a Republican victory in this case “would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights.”

A Politico report added, “With 30 state legislatures currently in Republican hands, GOP state legislative leaders would be strongly positioned to skew maps in their party’s favor and to make changes Republican have sought to voting procedures.”

A HuffPost analysis went further. “Siding with the North Carolina Republicans could effectively give all electoral authority to state legislatures, including in the approval of the winner of the state’s Electoral College electors,” Paul Blumenthal argued.

There can be no doubt that the Supreme Court’s just completed term made clear just how far the institution has swung to the right, but that doesn’t mean the Republican-appointed justices won’t go even further.