Supreme Court argument on Moore v. Harper may see democracy at stake

in the Moore vs. Harper— scheduled for hearing on Wednesday, December 7 — the Supreme Court will decide whether to revive the previously dead “independent state legislature theory” — in a way that some commentators believe “poses an existential threat.” for our democracy” and could enable “The Republican blueprint to steal the 2024 election.”

Proponents of “ISLT” — Independent State Legislature Theory — believe the US Constitution gives state legislatures unverifiable powers to determine how congressional elections — and by extension presidential elections — are conducted.

The case is so controversial that more than 70 amicus briefs – “friends of the court” – have been filed with all of them, including former California Gov. Arnold Schwarzenegger, with the ACLU, 48 of which oppose the legitimacy of the ISLT.

What is the ISLT? Its proponents claim that the U.S. Constitution’s “electoral clause,” which says that state legislatures shall prescribe the “times, places, and manner of holding elections for senators and representatives,” means that no court can control those mandated by lawmakers actions taken by a state regarding voting in the state.

The particular case before the US Supreme Court revolves around gerrymandering — the practice of redefining congressional districts to favor one party — and stems from the North Carolina Supreme Court’s decision, its plan for the Republican legislature to change the state’s congressional districts grossly manipulate, nullify Republicans as unconstitutional under the North Carolina state constitution.

The North Carolina Supreme Court found the Republican plan to be “egregious and deliberate partisan gerrymander” that would give Republican voters a “bigger vote” than “everyone else.”

After a state court appointed a special master to draft a fair card, two Republican lawmakers asked the U.S. Supreme Court to step in and rule that no North Carolina court can review the state legislature’s decision because the ISLT such a review would be considered a violation of the US Constitution.

to accept SCOTUS’ decision Moore vs. HarperThe arguments of . are alarming because the ISLT interpretation of the US Constitution has been repeatedly rejected by the country’s highest court, which dates back to 1916, with numerous decisions acknowledging that state legislatures must still uphold their own constitutions. And these state constitutions regularly create a division of legislative power with courts and governors (right of veto), even when it comes to electoral laws.

Given the proven ability of the new SCOTUS conservative supermajority to ignore and overturn precedents – particularly in the Dobbs Decision that shattered decades of protection for a woman’s right to an abortion – the decision to hear the case raises the likelihood Conservatives will try again to overturn precedents.

Indeed, in 2000, an interest on the part of conservative SCOTUS judges in using ISLT to support Republican findings was noted Bush versus Gore Case in which Chief Justice Rehnquist’s consensus of opinion referred to ISLT, saying that another reason to prevent the Florida Supreme Court from ordering a statewide manual recount – which may have given Al Gore the presidency – is in insisted that the Florida Supreme Court violated the election clause. More recently, Justices Kavanaugh, Gorsuch, Alito and Thomas have all expressed an interest in supporting the ISLT.

If these four Conservatives were joined by either Chief Justice Roberts or Justice Amy Coney Barrett, SCOTUS could make ISLT the law of the country. So what could that mean?

For starters, gerrymandering would be entirely uncontrollable, meaning that any party that controls the legislature could redraw congressional districts at will, whether or not such maps violate the state’s constitution. And just in case you’re wondering if federal courts might step in, the answer is no as far as gerrymandering goes, given a conservative majority of SCOTUS – Chief Justice Roberts, as well as Justices Gorsuch, Alito, Thomas and Kavanaugh – in 2019 ruled case of Rucho against common cause that gerrymandering was a purely political issue that federal courts could not review.

Governors’ veto powers over state-wide electoral laws could also be removed, making the legislature the only branch of state government dealing with electoral law.

At the presidential election level, ISLT could be used to “de-power voters when selecting voters for the electoral college, or to make state legislatures, not courts, judges in post-election disputes”—similar to the theory behind the wrong voters scheme Trump supporters used to attempt to overturn the results of the 2020 election.

In fact, John Eastman, the creator of the idea that new voter rolls could be presented and/or that Vice President Pence could reverse the election, filed an amicus brief in Moore specifically requesting SCOTUS to reverse all precedents that previously opposed ISLT .

A conservative majority of SCOTUS decisions to include ISLT would also create a spate of elective cases that would place a tremendous burden of “invention” on a federal court system that is already seeing a record number of such cases[ing] an entirely new constitutional cause of action.”

In a recent panel discussion hosted by the Brennan Center for Justice and the New York City Bar, Professor Carolyn Shapiro pointed out that the ISLT would immediately convert any election case to a federal jurisdiction case, thereby bringing all such cases to the federal courts.

As a court of last resort, SCOTUS would become the sole decision-maker for all electoral disputes, arguably making it a super-justice with far more power than either the executive or the legislature of government.

Should that happen, SCOTUS conservatives will no doubt rely on so-called “originalist” doctrine as a fig leaf to hide their true motivations. That true motivation is simply exercising their newfound power. They will do it because they can.

Mary Shelley’s 1818 novel states: Frankenstein, a young scientist, Dr. Victor Frankenstein, discovers a method for reviving life from the dead and creates his own monster. As we all know, the monster becomes uncontrollable and eventually turns against its creator. The motivation of Dr. Frankenstein is never made explicit by the author, but he seems to do it because he can.

SCOTUS, an institution that has since managed to lose the trust of the majority of Americans, might do well to recall this story of the destruction that can be wrought through the uncontrolled use of power.

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