In Moore v. Harper—scheduled for oral argument on Wednesday, Dec. 7—the Supreme Court will decide whether to resurrect the previously dead “Independent State Legislature Theory”–in a way that some commentators believe may pose “an existential threat to our democracy” and could enable “the Republican blueprint to steal the 2024 election.”
Proponents of the “ISLT”–Independent State Legislature Theory–believe that the U.S. Constitution bestows unreviewable power upon state legislatures to determine how congressional elections–and by extension Presidential elections–are conducted.
The case is so controversial that more than 70 amicus briefs–“friends of the court”–have been submitted, including everyone from former California Gov. Arnold Schwarzenegger to the ACLU, with 48 of them being opposed to the legitimacy of the ISLT.
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Just what is the ISLT? Its proponents claim that the “Elections Clause” of the U.S. Constitution, which states that state legislatures shall prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives,” means no court can review any actions taken by a state legislatures with regards to voting in the state.
The specific case before the U.S. Supreme Court is about gerrymandering–the practice of redrawing Congressional districts to favor one party-and arises from the North Carolina Supreme Court’s decision to strike down its Republican state legislature plan to grossly manipulate the state’s congressional districts in favor of Republicans as being unconstitutional under the North Carolina state constitution.
The North Carolina Supreme Court found that the Republican plan was an “egregious and intentional partisan gerrymander” that would give a “greater voice” to Republican voters over “any others.”
After a state court appointed a special master to design a fair map, two Republican legislators asked the U.S. Supreme Court to step in and rule that no North Carolina court can review the state legislature’s decision because the ISLT would make such review a violation of the U.S. Constitution.
SCOTUS’ decision to accept Moore v. Harper’s arguments is alarming because the ISLT interpretation of the U.S. Constitution has been repeatedly rejected by the highest court in the land, dating back to 1916 with numerous decisions recognizing that state legislatures must still adhere to their own constitutions. And those state constitutions regularly create the sharing of legislative power with courts and governors (veto power) even when it comes to election laws.
So given the demonstrated capacity of the new SCOTUS conservative supermajority to ignore and overturn precedent—most notably in the Dobbs decision which struck down the protections for a woman’s right to abortion that had stood for decades–the decision to hear the case raises the likelihood that the conservatives may again be looking to overturn precedent.
Indeed, interest on the part of conservative SCOTUS justices in using ISLT to help Republican outcomes was seen in the 2000 Bush v. Gore case, where then Chief Justice Rehnquist’s concurring opinion referenced ISLT in saying that another reason to stop the Florida Supreme Court from ordering a state-wide manual recount–which might have given the Presidency to Al Gore–was because the Florida Supreme Court was violating the Elections Clause. More recently, Justices Kavanaugh, Gorsuch, Alito, and Thomas have all expressed interest in supporting ISLT.
If these four conservatives were joined by either Chief Justice Roberts or Justice Amy Coney Barrett then SCOTUS might make ISLT the law of the land. So what could this mean?
For starters, gerrymandering would be completely uncontrollable, meaning whichever party controlled the legislature could redraw Congressional districts at their whim whether or not such maps violated the state’s constitution. And just in case you are wondering if federal courts could step in: the answer is no, as to gerrymandering, because a conservative majority of SCOTUS-Chief Justice Roberts, as well as justices Gorsuch, Alito, Thomas and Kavanaugh–ruled in the 2019 case of Rucho v. Common Cause that gerrymandering was a purely political issue that federal courts could not review.
The veto power of governors over any state election laws could also be nullified making the legislature the only branch of state government in the area of election law.
At the Presidential election level, ISLT could be used to “take power away from voters when picking electors for the Electoral College or to make state lawmakers, not courts, the judges in disputes after the election”–similar to the theory behind the fake electors scheme that Trump supporters tried to use to overturn the results of the 2020 election.
Indeed, John Eastman, the creator of the idea that new slates of electors could be submitted and/or that Vice-President Pence could overturn the election has submitted an amicus brief in Moore specifically calling for SCOTUS to overturn any precedents that have previously rejected ISLT.
A conservative majority of SCOTUS decisions to embrace ISLT would also create a flood of election cases that would enormously burden a federal court system already seeing a record high of such cases by “invent[ing] an entirely new constitutional cause of action.”
In a recent panel discussion hosted by the Brennan Center for Justice and the New York City Bar, Professor Carolyn Shapiro noted that the ISLT would instantly transform every election case into one with federal question jurisdiction, thus throwing all of these cases into the federal courts.
As the court of last resort, SCOTUS would become the sole decision-maker for all election disputes which arguably would make it a super judiciary holding far greater power than either the Executive or Legislative branches of government.
If this should come to pass, the SCOTUS conservatives will no doubt rely upon the so-called “originalist” doctrine as a fig-leaf to hide their real motivation. That real motivation is simply the exercising of their new-found power. They will do it because they can.
In Mary Shelley’s 1818 novel, Frankenstein, a young scientist, Dr. Victor Frankenstein, discovers a method by which he can resurrect life from the dead and creates his own monster. As we all know, the monster becomes uncontrollable and ultimately turns upon its creator. Dr. Frankenstein’s motivation is never made explicit by the author, but he appears to do it because he can.
SCOTUS, an institution which has now managed to lose the trust of the majority of Americans might do well to remember this tale about what destruction can be wrought by the unchecked use of power.
