Moore v. Harper is a case that will be considered by the Supreme Court Wednesday. It concerns whether the North Carolina Supreme Court exercised its rights last year. The state’s highest court ruled that the redistricting maps for the Congress drawn by the GOP-controlled State Legislature were erroneously drafted along partisan lines.
The Independent State Legislature doctrine could allow state legislators to decide which presidential candidate they will vote for in their states.
The reality is that this case’s final ruling could have a far-reaching impact on the state and the once-per-decade process for drawing congressional districts. The reason is that the plaintiffs challenging the North Carolina court ruling use a fringe legal theory, the Independent State Legislature doctrine (or ISL), which argues that the U.S. Constitution gives states legislatures unique power over federal elections.
The opening brief of the Supreme Court was written by attorneys for Republican state legislators. They argued that the Constitution’s election clause is too broad and that the state legislatures only have the power to regulate federal elections.
This reading of the Constitution, taken to its extreme, would grant state legislators, not governors, the authority to draw maps and all rules governing federal elections, including how votes are counted, who wins, and how they are managed.
That’s right. If the Supreme Court endorses the Independent State Legislature doctrine, it could allow state legislators to decide which presidential candidate will receive their state’s Electoral College votes regardless how people actually voted. In practice, it is possible for a rogue legislature to be dissatisfied with the results of their state’s elections to cause chaos and delays, and then invoke the ISL to allow them to unilaterally send their own electors to the Electoral College vote. There are no courts or governors who can stop their actions.
Although the Elections Clause was not understood in this way in the past it is possible to reinterpret it. After the 2020 election, Donald Trump made ISL the center of his efforts in convincing key Republican legislators to overturn their voters’ will and declare him the winner.
Although it didn’t work at the time, if ISL is approved by the Supreme Court’s current rightwing supermajority in order to prevent Trump or other antidemocracy candidates from stealing the election, it could work in 2024. This would dramatically alter the notion of American democracy as we know it. The validity of ISL would weaken our foundational system for checks and balances. It would take away the power of state governors, courts, constitutions and constitutions during the election process. Furthermore, it would give more power to extremist partisan legislators.
These are the stakes. There is no pressure.
It’s likely that the court will follow this dark path. At the very least, four of the justices have indicated some openness to ISL. The majority is just one shy of Justice Amy Coney Barrett, who was appointed by Trump.
In this case, the most important antidote is to elect as many pro-democracy legislators to state legislatures. These lawmakers will stand up for the voice of voters and resist attempts to undermine their elections.
The States Project has invested over $60 million in state legislative efforts during the 2022 election cycle to protect and build governing majorities within key state chambers. This would allow them to prevent the theft and retake the 2024 presidential elections. It also promotes efforts to safeguard democracy, protect individual rights, and improve people’s daily lives. We prioritized electing Democratic majorities in states that could be a buffer against any future attempts to subvert elections in these states, given the threat of Moore v. Harper’s ruling and the large number of Republicans who serve in state legislatures.
The historic investment made in these chambers was greater than any outside effort to focus on state legislative races in one cycle. It paid off tremendously. Our investment supported pro-democracy candidates in key states. This included places that we spent heavily, despite doubts from others about the possibility of winning.
We were all in Michigan. We helped flip both chambers and created the first Democratic trifecta for nearly 40 years. We doubled down in Pennsylvania listening to the naysayers, and winning the House back from the right-wing majority . This was the first time the House had been won in a decade.
We refused to abandon Arizona, even though others considered it a long shot. Now we expect that Democrats will be able to hold their ground in the state known as ” Ground Zero” of America’s democracy crisis.
These wins are important, but they don’t offer a permanent solution. There are always more elections — another chance for anti-democracy groups to regain power. Each state legislative election could pose a threat to the integrity of our democracy, with the Supreme Court possibly lending their stamp of approval to ISL this spring.
It is a reminder that democracy is something we believe in. It is essential that we continue to treat state legislative elections as the critical races they are, and invest in them accordingly. Not just for the current cycle, but for every cycle.