On December 7, the anniversary of a day that will live in infamy, the U.S. Supreme Court will hear a case that has grave repercussions for American democracy. The GOP-appointed majority will have the chance to give state legislatures sole state authority to establish regulations for federal elections in the Moore v. Harper case.
In states where one party controls the legislature, that party could gerrymander to its heart’s content without the governor’s permission or judicial supervision. The judgment might also pave the way for election skeptics’ plan to use phony or alternative elector slates to steal the presidency in 2020 to be repeated.
The case gives rise to the absurd argument that the U.S. Constitution’s architects intended for state legislators to be able to implement restrictive election laws and congressional redistricting plans on their own, without any oversight from the courts. The “times, places, and manner of holding elections… shall be defined in each state by the legislature thereof,” according to Article I, section 4 of the Constitution.
Everyone has believed that state high courts have the authority to consider and rule on legal challenges to voting laws and redistricting plans ever since the ink on that cherished document started to dry in 1787. A crucial component of the checks and balances that underpinned the constitutional scheme was court review, but a few of the majority of the Court now appears to believe that everyone has been misinterpreting this language for the past 235 years.
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The “independent state legislative” theory (ISL), which holds that state legislatures have only able to choose voting procedures and redistricting strategies for congressional elections in their states, has gained traction among some Republicans.
The argument has been extensively debunked by reputable constitutional academics, but that hasn’t stopped the extremists from using it as a plan to maintain their hold on Congress and, possibly, improve their chances of winning the presidency. Their argument is based on the fact that Article I, section 4, does not contain wording stating that legislative actions are susceptible to judicial review.
Thanks to @qjurecic for the shout out to @kateashaw1 & my @WisLRev article on the independent state legislature “theory” in her @TheAtlantic piece on the topic! https://t.co/KtBX9gOghm pic.twitter.com/6UlXSni0FA
— Leah Litman (@LeahLitman) November 30, 2022
The GOP majority would be wise to remember that the United States Constitution does not explicitly state that the Supreme Court has the jurisdiction to decide whether or not congressional acts are constitutional. In the historic case of Marbury v. Madison, the Supreme Court only presumptively exercised such power.
If the current Court adopts the ISL theory, a future Democratic Congress might utilize its legislative authority granted by Article III, section 2, to support severely limiting the Supreme Court’s jurisdiction over voting and possibly other contentious issues. What other way is there to control a misbehaving Court?
It is essentially certain that the Court’s conservative majority chose to hear Moore v. Harper only for political reasons because there were no solid legal justifications to examine the ISL hypothesis. They ought to think about what just occurred in New York before implementing ISL.
A state court ruling invalidating a severely gerrymandered New York redistricting plan played a significant role in the GOP’s ability to win control of the U.S. House, which was an odd turn of events. The Democrats might have gained four more House seats if New York courts had been prohibited from evaluating and invalidating the plan. The ISL concept is a double-edged weapon that might be used against the GOP and further corrode American politics.
Before a new GOP House majority can stop this crucial corrective effort, Congress should make fixing the issue a top priority during the lame-duck session. The election rules enacted by a state legislature may be changed at any time by legislation, according to Article I, section 4.
By explicitly stating that any rules or plans approved by state legislatures are subject to the ordinary state processes for legislative enactments — executive approval and court review — Congress may and should put an end to the ISL hypothesis. This is consistent with the form of government that the Constitution’s framers chose and has been followed throughout American history.
Acting quickly is necessary because the GOP plan may have a second phase that is much more cunning. That is, if the Republican nominee does not gain a majority of presidential electors in 2024, some Republicans may attempt to utilize the ISL theory as a means of stealing the office after winning a ruling accepting it in Moore v. Harper.
Each state is required to choose its presidential electors “in such way as the legislature thereof may determine,” according to Article II, Section 1 of the Constitution. It has long been customary to select electors on election day based on the popular vote.
However, the nation saw an attempt to diverge from that tradition by former president Trump and his obedient supporters, who aimed to deploy “false” slates of electors selected by one-party legislatures in many purple states to annul the election results.
In the case of a close election in a few purple states in 2024, Trump’s plan to steal the 2020 election using alternative electors might be revived in favor of the GOP presidential nominee. This method was supported in 2020 by those who sought to rig the 2020 election, including Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. It is quite likely that they are still refining it in preparation for 2024.
That endeavor would gain some legitimacy if the Supreme Court adopted the ISL doctrine. Congress must put an end to this fraudulent plan as soon as possible for the sake of American democracy. Vietnam War veteran Jim Jones served as Idaho’s attorney general from 1983 to 1991 for eight years and as a justice on the Idaho Supreme Court for twelve years (2005-2017). He frequently writes for The Hill.