We need to talk about Moore v. Harper.
The right-wing rogues in the Supreme Court have agreed to hear a case that very well might put a judicial capstone on the GOP’s ongoing coup attempt, which could be the death knell for our democracy.
The nation is still reeling from the blitzkrieg unleashed by an extreme Supreme Court that used its last term to bulldoze a woman’s right to abortion, neutered the EPA’s ability to regulate greenhouse emissions, limited states’ rights to regulate guns, eroded the separation of church and state, and weakened civil rights by ruling law enforcement can’t be sued for failing to read a person their Miranda rights.
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But the Supreme Court isn’t done trying to implement minority rule and advance its Christian nationalist agenda. They have agreed to hear Moore v. Harper, the most consequential case to our nation’s democracy that most Americans still aren’t talking about.
In Moore, North Carolina’s Republican House speaker wants to restore heavily gerrymandered congressional maps drawn by GOP elected officials that were rejected by the North Carolina Supreme Court. The court ordered them redrawn because they gave the GOP an “extreme partisan advantage” that violated the state constitution. In response, Republicans are invoking the “independent state legislature doctrine” which advances “the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without interference from state courts,” as Amy Howe put it in SCOTUSblog.
If the court buys this nonsense theory, then the Republican-controlled state legislatures would be immune from any interference from state courts, governors, and elected officials who step up to protect voting rights and fight back against “constitutional mischief.” Republicans are arguing the Constitution allows state legislatures to completely ignore state Supreme Court decisions when passing laws related to federal elections, and this opens the door for the Supreme Court to say they could ignore the governor and act on their own.
To put it plainly, if President Joe Biden wins battleground states again in 2024, the Republican-controlled state legislatures of Wisconsin, Michigan, Georgia, Arizona, and Pennsylvania could simply reject the will of the majority and install their own slate of electors and hand-deliver the presidency to a Republican.
That’s exactly the crazy plan outlined by Trump-allied right-wing attorney John Eastman in his six-point memo, which a federal judge concluded was a “coup in search of a legal theory.” During his deliberate and sober testimony before the Jan. 6 Committee, retired Judge J. Michael Luttig, a life-long conservative, eviscerated the independent state legislature doctrine as dangerous bullshit and warned that “Donald Trump and his allies and supporters are a clear and present danger to American democracy.”
Judge Luttig also told then-Vice President Mike Pence that he had no authority to overturn the results and must follow the law and certify the 2020 election, otherwise “that declaration of Donald Trump as the next president would have plunged America in what I believe would have been tantamount to a revolution within a constitutional crisis in America.” Constitutional law scholar Vikram Amar concluded the independent state legislature theory advanced by Republicans “is as wrong-headed as it is treacherous.”
Conservative justices Clarence Thomas, Neil Gorsuch, Samuel Alito, and Brett Kavanaugh have already signaled that they support a version of the independent state legislature doctrine. Meanwhile, the alleged moderate on the Supreme Court, Chief Justice John Roberts, has already used his pen to eviscerate the Voting Rights Act in Shelby v. Holder and gave a green light to extreme partisan gerrymandering in Rucho. If you haven’t noticed, our voting rights are currently under active assault from an unprecedented wave of GOP voter suppression efforts across the nation.
On Friday, conservative judges in the Wisconsin Supreme Court did their part to erode voting rights by prohibiting most ballot drop boxes. Slate’s Mark Joseph Stern analyzed the ruling and said the court uses language questioning the legitimacy of the 2020 election. Currently, a majority of Republican voters believe in the Big Lie, along with more than 100 Republicans who won their primaries in May. The GOP has unleashed a “precinct strategy” using an “army” of right-wing activists, including attorneys, to contest and disrupt upcoming elections. The RNC said the violent insurrectionists who sought to overturn our election were “ordinary citizens” engaged in a “legitimate discourse.” Sixty percent of state legislatures around the country are controlled by Republican majorities, who are increasingly radicalized and advance dangerous conspiracy theories.
How do you think this will end?
In response, President Biden urged the nation on Friday to “vote, vote, vote” right before signing an executive order to protect access to abortions. Voting is the administration’s solution to combat this “out of control” Supreme Court’s recent overreach in Roe and “extremist” Republicans' ongoing assault against our rights. Not expanding the court or limiting its jurisdiction—but voting. Of course, we should all vote out as many Republicans as possible, however, voting won’t be enough if the Supreme Court rules in favor of Republicans and against democracy in Moore.
There is some hope as senators are “close to a deal” on amending the Electoral Count Act of 1887 that could remove the loopholes that will be exploited by Republicans to succeed in their coup. The Brennan Center For Justice recommends Congress limit the vice president’s role in counting presidential electors. They added Congress must also “clarify the rules around the appointment of electors” by replacing “vague language about ‘failed’ elections with clearer language establishing that electors may only be selected after Election Day in very exceptional circumstances that make voting impossible, like a major natural disaster, and that the default remedy in such instances is to extend voting in affected areas, not to redo the election or appoint electors by some other means.”
Of course, none of this matters when Republican elected officials and conservatives judges are not beholden to the Constitution, rules, democracy, or norms to advance their extremist agenda.
In the meantime, President Biden and Democrats must sound the alarm about the GOP’s ongoing coup and educate the majority, pressure the Supreme Court with threats of expansion and reform, and hope enough Republican senators come to their senses and reform the Electoral Court Act of 1887 to save our democracy. Or, we can just hope that the Supreme Court refuses to yield to treachery and “constitutional mischief.” Call me pessimistic on that last one.
