Almost exactly a year ago in these pages, I wrote a two-part piece on Moore v. Harper, the case before the Supreme Court that tested the so-called “independent state legislature theory,” a crackpot concept that the Republican Party was trying to codify as a means of undermining democracy in these United States. 

Yesterday the Court handed down a 6-3 ruling rejecting it. (Roberts, Kavanaugh, and even Barrett joined the three progressive justices. Thomas, Alito, and Gorusch dissented. Perhaps Harlan Crow or Peter Singer will fly them off to go fishing and lick their wounds.) 

Along with the recent Court ruling rejecting racist gerrymandering in Alabama, and upholding the White House’s prerogative to set immigration policy, this is a most welcome—and somewhat surprising—ruling. Had SCOTUS ruled the other way, Moore might have been the coup de grâce in the ongoing Republican campaign to install itself in power permanently.   

I know that the much-esteemed retired federal judge Michael Luttig, a conservative icon who was one of most vocal critics of the ISLT, recently wrote that he was optimistic that the Moore decision would go down this way, and he was proved correct. I was not so sanguine. As Naomi Klein wrote in The Intercept last June, there was “no reason to believe that a group of people whose very presence on the bench required grotesque abuses of democracy would somehow draw the line at thwarting it.” (And that was before we knew of these latest examples of its graft and corruption.)

But they did, and I am relieved. American democracy remains in grave danger, but this was an important victory, with the added bonus of restoring one tiny iota of my faith in the Court.  

We can all use some good news these days. 

LET’S REVIEW

Last July, I wrote: “Get used to the name Moore v. Harper. Because it might soon join the likes of Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, Citizens United v. FEC, and others in legal infamy.”  

In narrow terms, Moore involved the right of North Carolina’s Republican-controlled state legislature to redraw voting districts for its 14 seats in the US House of Representatives after NC state courts stuck down the old map for its blatant pro-GOP gerrymandering. (A court-drawn map was temporarily in place for the midterms.)

But its implications went way beyond that. Moore turned on the ISLT, which argues that state legislatures have the final say in federal elections, and nobody—not state courts, nor the Supreme Court, nor Congress—can question or overrule them. That, of course, makes no sense: how can a state legislature have precedence over even the constitution that established it? But it was a theory, however, cuckoo, that served certain interests. A SCOTUS ruling in favor of the ISLT would have allowed any given state legislature to enact even more extreme gerrymandering to maintain its majority, or to pass draconian voter suppression measures, to dispense with the secret ballot, or to get rid of non-partisan supervisory boards for federal elections. In its most extreme interpretation, it would even allow the legislature to disregard the popular vote in a presidential election and award that state’s electoral votes to whatever candidate it wished. 

As Republicans control 30 of the 50 statehouses, guess which party thought this theory was awesome?

This was the very heart of Trump’s scheme to overturn the 2020 election, by having Republican-dominated state legislatures send their own pro-Trump electors to the Electoral College, rather than those chosen by the voters in that state. But Trump’s act was retroactive; if the Court had ruled in favor of the GOP in Moore, the usurpation could happen in advance next time, making it much easier to execute and defend and much harder to prevent or reverse. It would also have the pre-emptive imprimatur of the Supreme Court. 

Last summer I also wrote that Moore v. Harper was part of a long, deliberate Republican scheme to implement an outrageously anti-democratic, countermajoritarian system that would ensure permanent, unchallengeable control of US presidential elections going forward, in perpetuity, irrespective of the popular vote. With Moore, the GOP thought it had found a quasi-legal way to achieve it, as effectively and bloodlessly and permanently as possible. Thanks to extreme gerrymandering that gives the Republican Party an all-but unbreakable hold on the state legislatures that it holds, its 30-state majority is unlikely to change, meaning that this case would have served as a fast-burning, fuel-on-the-fire accelerant toward the establishment of lasting, autocratic, one-party right wing rule in the US going forward.

THE SCHOLARS SPEAK

Since it was first floated before the Supreme Court—and rejected—in 1916, the independent state legislature theory had been tossed out of court dozens of times in the ensuing 106 years. In 2000, during the Florida recount debacle, Chief Justice William Rehnquist raised it in his concurrence in Bush v. Gore, but it was almost uniformly dismissed as not worthy of serious consideration, and correctly categorized as the province of the batshit political fringe. But back then, so was Donald Trump. You may have noticed that that fringe has lately taken control of the country.

In arguments over Moore, the legal scholars who came out in full-throated outcry over the craziness and irrationality of the ISLT—not to mention the threat it posed to representative democracy—were legion. The only proponents were transparently partisan right wing hacks like Professor Michael Morley of the Florida State Law School, the soon-to-be-disbarred John Eastman, and similar water carriers for the GOP.

In a piece for the Washington Post published last year, Carolyn Shapiro, a law professor and founder and co-director of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, Leah Litman, a professor at the University of Michigan Law School, and Kate Shaw, a professor at the Cardozo School of Law—who are the co-hosts of the podcast “Strict Scrutiny,” wrote:

Since 2020, a mountain of scholarship has emerged thoroughly debunking the ISLT. Its historical bases are nonexistent. The Founders understood well that states could choose to have constitutions that constrain state legislatures, and that view has held sway in practice and law ever since. And state executive officials have also enjoyed considerable discretion to operate federal elections since the founding.

The ISLT is also wildly inconsistent with federalism. In our federal system, state courts have the final say over the meaning of state law; states also have considerable latitude in structuring their governments. The ISLT could transform cases about interpreting or applying state election laws into federal constitutional cases to be decided by the federal courts.

The trio went on to note that the ISLT would also lead to a two-tiered system where state constitutional provisions guaranteeing free elections “would not apply to laws governing federal elections, but would still apply to laws governing state elections.” A state court could strike down voter ID laws for state elections, for instance, but they would stay in place for federal ones. “The state would end up with two systems—one for federal elections and one for state elections.”

Other experts called the ISLT “phony,” “a Republican power grab masquerading as legal theory,” “rubbish,” “as wrong-headed as it is treacherous,” “nonsense,” part of a “Christian nationalist agenda” and an attempt to “implement minority rule.” Vox’s Ian Millhiser called the ISLT “perhaps the gravest threat to American democracy since the January 6 attack.” CNN’s Zachary Wolf  called it “a complete re-imagining of American democracy,” one that would give state lawmakers the “power to ignore voters and pick presidents.” He also noted that many on the American right are fine with that….so long as those lawmakers are politically aligned with them. 

“(T)here is an increasingly open opposition to the idea that voters should be calling the shots,” Wolf wrote last summer. “Politicians seem to have no problem favoring the idea that only voters they agree with should be calling the shots and voters they disagree with should be blocked.” 

I myself opined that it was “not so much a coherent legal theory as it is a wild ass gambit for the justification of autocracy by a group that, say, has diminishing popularity with voters, but control of a majority.”

In the WaPo, Colby Itkowitz and Isaac Stanley-Becker noted that not only would the ISLT “erode basic tenets of American democracy” by giving state legislatures “virtually unchecked power over federal elections,” but that such “immense power would go to legislative bodies that are themselves undemocratic….because they have been gerrymandered to create partisan districts, virtually ensuring the party-in-power’s candidates cannot be beaten.”

What could possibly be more un-American?

OVER TO YOU, SCOTUS

Still, there were good reasons to fear that the current Supreme Court would rule in the GOP’s favor in Moore, given its 6-3 archconservative supermajority, including three Trump appointees—a full third of the Court—not to mention its egregious record on other recent matters, from abortion, to guns, to the right of the EPA to regulate carbon emissions,and even to the once-inviolable separation of church and state. Some members of this Court obviously relish its power to remake America as Gilead, the will of the American people—and a reasonable interpretation of the US Constitution—be damned. After all, these days, as The Atlantic’s Adam Serwer writes, “The Constitution is whatever the right wing says it is.” Meanwhile the very demographic that once howled about “judicial activism” (when practiced by the left) has suddenly seen its advantages and become zealous converts to the idea.

Writing in The Intercept, Naomi Klein describes that spate of Supreme Court rulings as “a shock-and-awe judicial coup,” which she correctly reminded us “is by no means over.” Contraception, same sex marriage, integrated lunch counters—it is terrifyingly easy to imagine all of them vanishing from the American landscape. Few people, however, have thought that the very concept of one-person-one-vote would be on the chopping block. Until Moore. 

Rhode Island’s Democratic Senator Sheldon Whitehouse drew blood when he said that, “The fact that the Court is even considering a case involving such an extreme idea shows how beholden it is to the right-wing donors who got so many of the justices their jobs.” (Among the most outspoken advocates of the ISLT was the risibly named Honest Elections Project, an alias of the 85 Fund, a conservative nonprofit linked to Leonard Leo, the former longtime head of the far right wing Federalist Society, the group that has spent 40 years obtaining Republican dominance of the US judiciary.) 

In March of 2020, when the Court first declined to hear an emergency request on Moore, four justices—Alito, Thomas, Gorsuch, and Kavanaugh—indicated that they would likely affirm the ISLT, should the opportunity arise. (The first three voted to hear the case back then; Kavanaugh thought it was too close to Election Day, but suggested that the Court should consider the matter in its next term, which it did.) But miraculously, Brett ultimately seems to have decided that the ISLT was a bridge too far, even for Trumpism. For that matter so did ACB, despite progressive grumbling that McConnell’s infuriating and hypocritical rush to put her on the Court in Trump’s final weeks was aimed at this exact matter. 

This past March the Court allowed the gerrymandered map in North Carolina to stand, and one in Pennsylvania as well, though that case did not address the broader issues of the ISLT. (It was that decision that Thomas cited in his dissent on Moore, arguing that it rendered the decision to hear Moore moot. )

Mercifully, six other justices disagreed with Ofharlan—I mean Clarence—and reason prevailed. I will admit that I did not have confidence in Kavanaugh and Barrett, and they proved me wrong, so credit where it’s due. The Court has recently shown similar reasonableness in the Alabama gerrymandering case—5-4, with Roberts and Kavanaugh again siding with the progressive bloc—and the Texas immigration decision—8-1, with only Alito holding his breath and stamping  his feet. (That lopsided win betrays the poison pill in that ruling, as it opens the door for a future Republican administration to do truly horrific things on immigration without any Congressional oversight.) 

Is it possible that the surge of scandals recently plaguing the highest court in the land was a factor? Perhaps the conservative justices are on their toes, playing it straight for fear of losing the last remaining shred of their credibility….and maybe even their jobs, at least as they are currently defined? (Note: Does not apply to Alito and Thomas.) It’s doubtful, as these decisions were made long before ProPublica broke those stories.

More to the point, will this run of rationality prove to be only a brief reprieve for the Court, or is it the beginning of new and more hopeful direction? I remain wary. If rejecting a lunatic fringe theory like the ISLT is the metric for sterling jurisprudence, the bar is truly at an all-time limbo low. But I’ll take it.

TAKE A DEEP BREATH

My two-part screed against the ISLT last year was titled “The Atomic Bomb of Election Subversion.” It was hyperbole of course, to use that metaphor to convey the damage that the theory could do, but I still stand by it, poetically speaking. The Republican campaign to undermine American democracy has been a slow and grueling struggle of island-hopping, like the war in the Pacific (loath as I am to cast them in the role of the Allies), from gerrymandering to packing the judiciary with far right judges to sabotaging voter access with neo-Jim Crow-like restrictions. But Moore would have been the A-bomb at the end of that campaign, putting a definitive end to resistance once and for all. 

Last June, Judge Michael Luttig wrote that Trump and the GOP could be stopped from stealing the 2024 election only “if the Supreme Court rejects the independent state legislature doctrine and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.” Both those things have now happened.

The danger to American democracy is far from past, but this week’s ruling was a highly welcome step back from the brink. 

Now let’s see how the GOP tries to outflank it.

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Photo: Shutterstock/Johnny Silvercloud