On Wednesday, the Supreme Court will hear a case, Moore v. Harper, which could decide whether Democrats will ever be permitted to win another election.
The case involves the independent state legislature theory—the crackpot notion that the Elections Clause of the Constitution permits state legislatures to wield unchecked power in the way states run their federal elections.
The Elections Clause reads, in part, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…”
The ISL theory is absurd and rests on an anachronistic interpretation of the term “legislature,” in the Elections Clause. The term legislature has historically referred to the entire state lawmaking apparatus, including state court rulings and governor’s vetoes.
But according to North Carolina Republicans, “legislature” means the legislative body, exclusively, such that the state courts have no power to constrain actions the legislature might take when it comes to regulating federal elections.
Although the ISL theory has been discredited by legal scholars on both sides of the aisle, there is still cause for alarm—
Four of the #FedSocSix have already expressed an openness to this theory: Roberts, Thomas, Alito, and Kavanaugh are all playing footsies with the idea.
Four of the #FedSocSix have already expressed an openness to this theory: Roberts, Thomas, Alito, and Kavanaugh are all playing footsies with the idea.
If SCOTUS adopts this theory, it will spell disaster for democracy. State court judges could lose their power to stop partisan legislators from passing laws that undermine fair elections. Governors could lose their power to veto anti-democratic voting laws.
Ultimately, Republicans in North Carolina want to gerrymander and run unfair elections—and they are claiming that the U.S. Constitution prevents state courts from doing anything about it.
Follow along as @AngryBlackLady live-tweets the oral arguments on the @RewireNewsGroup account on Wednesday, December 7, followed by a rapid-reaction episode of #BoomLawyered.
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