Moore v Harper Promotes A Dangerous Theory

If you think the Supreme Court’s decision on Roe v Wade was wrong, wait until you hear their decision on Moore v. Harper, a/k/a the Independent State Legislature theory (ISL), which would upend the entire system of elections in the United States.

The Supreme Court of the United States (SCOTUS) will hear arguments in the North Carolina case on December 7, 2022, and make their decision in early 2023. 

This case started when the North Carolina legislature drew a congressional map that illegally used race to limit the influence of minority voters in congressional elections. A federal court struck down that map.  Next, the North Carolina legislature drew a partisan gerrymander map to achieve the same results. When that map was challenged, it survived federal court review because federal law and the U.S. Constitution did not provide standards for invalidating partisan gerrymanders.

The outcome of all these congressional maps is that North Carolina’s state legislators can’t draw a congressional map that uses race to limit the voting power of minorities. However, they can draw a congressional map that is an avowed partisan gerrymander map that achieves the same result.  

The Moore v. Harper case was then kicked up to the Supreme Court by plaintiffs using the Independent State Legislature theory to promote a partisan gerrymandered congressional map in North Carolina that gives an undue advantage to Republicans.

This case asks whether state legislatures should have exclusive power to determine the outcome of federal elections. North Carolina legislators argue that there should be no checks or balances for state legislatures in elections and that they should have absolute power to set election rules to determine disputed outcomes. They would be able to redraw districts without oversight, pick electors and ignore the state’s voting laws and constitutions.

The Independent State Legislature (ISL) theory came to national attention when Trump’s attorney John Eastman promoted it by advising states to send Trump’s fake slate of electors to vote for him and disregard the 2020 presidential election result. If the Supreme Court decides for plaintiffs in Moore v. Harper, then Trump or someone like him may succeed in 2024, where they failed in 2020.

According to the Brennan Law Center, “the ISL theory is a dubious reading of the Constitution that claims the only entity in a state to make federal elections rules is the legislature. The theory could render governors, state courts, and state constitutions powerless to prevent abuses in national elections. 

The ISL theory states that partisan state legislatures have the authority to set federal election rules, free from oversight from state courts, state laws, or the state constitution.  Combined with the Supreme Court’s conservative majority, this radical theory has the potential to change our electoral system and destroy democracy.

Adopting this radical theory would allow typer-partisan controlled legislatures to restrict voting rights, trample on the rights of citizens, undermine the election, and weaken democracy, thus stripping state court’s authority to serve as a judicial check on partisan abuse of the election system.

According to Judge Michale Luttig, a conservative who wrote, “Trump and the Republicans can only be stopped from stealing the 2024 election if the Supreme Court rejects the Independent State Legislature doctrine.” 

If the Supreme Court agrees with the plaintiffs, partisan state legislatures will have uncheckable power to do whatever they want. The idea that a state legislature will have unreviewable, uncheckable power and that the Supreme Court will determine without state involvement is constitutionally wrong and historically wrong.

Attacks On Democracy Keep Coming From MAGA Republicans

Attacks on democracy are growing, and the ISL theory is yet another way the MAGA cult, which only has loyalty to Trump, is attacking our democracy. Trump’s “Big Lie” is turning into laws as Republican state legislatures enact new voter suppression laws to combat fraud that does not exist. 

Over 300 Republican election deniers are running for public office. Some for state legislators, governorships, and Secretary of State, and others for federal offices in the Senate and Congress. They are also recruited to work and run our state and local elections. 

The man behind all the ultra-conservative Supreme Court justices willing to overturn Roe, do away with affirmative action, gut Voting Rights, and end democracy to set up a fundamentalist, theocratic oligarchy – is Leonard Leo. 

He is the judicial whisper behind the Supreme Court appointments of Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Barrett.  Leo is a Catholic fundamentalist who controls a network of right-wing groups funded by billions of dark money. He was co-chair and former Executive Vice President of the Federalist Society.  He was elected by no one and is one of the country’s most powerful and influential political operatives.

Leo knew Republicans could not win the culture wars and might not be able to win elections in the future since they lacked diversity. Hence, they needed to stack the courts with ultra-conservatives and pass laws to advantage Republicans.  

There is no end to the draconian decisions coming from ultra-conservative Justices on the United States Supreme Court, from taking away women’s reproductive rights to ending democracy. Repressive court cases are lined up to take away our rights and take us back decades, if not centuries. 

Vote like your life, and democracy depends on it because it does. 

By Gloria Tatum

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