One Upcoming SCOTUS Decision Could Dismantle Democracy Before 2024
Moore v. Harper could give Republican state legislatures complete control over elections, making it impossible for Democrats to win, ever.
The Supreme Court announced today that it will take up the case of Moore v. Harper, a case that could see the court give state legislatures sole authority over setting rules for how elections in the state are conducted - even if those rules and actions violate state constitutions, or result in extreme partisan gerrymandering.
In Moore v. Harper, Republicans are fighting to restore a heavily gerrymandered map drawn by North Carolina’s GOP-led legislature but was rejected by the state’s supreme court on the grounds that it violated the state constitution. Unlike their recent ruling reversing a lower court’s order that Louisiana’s election maps be redrawn, this time the Supreme Court upheld North Carolina’s ruling for the upcoming fall elections.
However, several of the conservative justices on the court have indicated that they are skeptical that state courts should have any role in deciding the rules for federal elections.
“Taking up Moore v. Harper gives the U.S. Supreme Court the opportunity to apply a doctrine supported by the Court’s new extreme conservative majority called ‘independent state legislature theory, or ISLT,” said Michigan state senator Mallory McMorrow.
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Constitutional law experts say that under the current Supreme Court, ISLT “imposes on the states a narrow mode of statutory interpretation - textualism - whose key justifications are largely inapplicable to the states.” In their paper on ISLT, Cardozo Law Professor Kate Shaw and University of Michigan Law Assistant Professor of Constitutional Law Leah Litman write that ISLT “is a lawless power grab by the federal courts masquerading as deference to a romanticized vision of the state legislature that fails to take state institutional design choices seriously on their own terms.”
Currently, Republicans control the state legislatures in 30 U.S. states, including several important swing states. Should ISLT be upheld by the Supreme Court, theoretically Republican-led legislatures in those states could simply change election rules to ensure that Democrats could not win in any federal election - effectively destroying the democratic process.
“If we don’t act today to win back state legislative chambers in key swing states, we may lose the right to democratically elect the next President,” McMorrow said.
Justices will review Moore v. Harper during their next term, which begins in October.
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