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Supreme Court Rejects Fringe Legal Theory Considered a Threat to Democracy Itself

The Supreme Court rejected a fringe legal theory on Tuesday that courtwatchers had warned threatened democracy itself.

The case, Moore v. Harper, which arose from a North Carolina dispute over the drawing of congressional maps, hinges on an idea known as the “independent state legislature” theory. The theory employs an extremely literal reading of the Constitution’s elections clause and effectively asserts that state legislatures should be the final word on elections rules – leaving out state courts and governors.

In a 6-3 decision, the justices held that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” while upholding a 2022 North Carolina Supreme Court ruling. Justice Clarence Thomas, Justice Samuel Alito and Justice Neil Gorsuch dissented.

Legal observers say the theory could have dramatically reshaped elections and upset the separation of powers relied upon by the American government by giving state legislators unilateral power to set election rules. It also ran the risk of allowing lawmakers to gerrymander without oversight or even disregard their popular vote and appoint their own electors in an attempt to overturn election results, spurring a critical threat to democracy ahead of the 2024 presidential election.

But the legal theory has a list of supporters as well, including John Eastman, an attorney who worked with former President Donald Trump in his effort to overturn the 2020 election. Eastman filed a brief asking the high court to embrace the independent state legislature theory.

A slew of litigation in state courts over rules administered in 2020 to expand accessibility to voting during the coronavirus pandemic seemed to reinvigorate the legal theory, as it became the basis of Republican challenges to pandemic-era voting rules and later was central to Trump’s effort to overturn the results of the 2020 presidential election.

In North Carolina, when the state Supreme Court turned down a new congressional map at the request of a group of Democratic voters who argued that it was a partisan gerrymander, Republican state lawmakers went to the U.S. Supreme Court on an emergency basis, arguing that the court violated the elections clause of the Constitution, which says that the “times, places and manner of holding elections” should be determined by state legislatures.

The high court declined to grant the Republican request for an emergency stay of the North Carolina Supreme Court order but decided to hear arguments over the case. Though he didn’t plainly endorse the theory, Alito wrote in a dissenting opinion joined by Thomas and Gorsuch at the time that the case represented “an exceptionally important and recurring question of constitutional law.”

On Tuesday – rather than weighing in on the underlying issue – the three justices said they would have dismissed the case because North Carolina’s highest court in April had overruled an earlier decision, sparking questions about whether the Supreme Court would still hand down a ruling on the issue.

“This is a straightforward case of mootness,” Thomas wrote, joined by Gorsuch and Alito. “The federal defense no longer makes any difference to this case – whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same.”

Dismissing the case would have left the constitutionality of the independent state legislature theory open to potential consideration from a future court. But the majority’s decision closes the door on the issue.

Some have argued that a ruling in favor of the legal theory would give more power immediately to Republicans, who control more statehouses than Democrats. It would also likely deliver enormous power to the GOP supermajority on the high court, giving it the final say over all election law disputes arising in states, bypassing state courts. Every election in a state could ultimately be decided by the high court.

But even some conservatives had urged the high court not to embrace the legal theory. J. Michael Luttig, a retired federal judge appointed by George H.W. Bush, signed on as co-counsel last year for those in opposition to the legal theory and described the proceeding as “the most important case for American democracy in the almost two and a half centuries since America’s founding.”

Former President Barack Obama celebrated the ruling on Tuesday for its “resounding rejection of the far-right theory that has been peddled by election deniers and extremists seeking to undermine our democracy.”

“It makes clear that courts can continue defending voters’ rights – in North Carolina and in every state,” he said in a statement.

The ruling comes after the high court in an unexpected turn earlier this month struck down a Republican-drawn congressional map in Alabama, in a major victory for the Voting Rights Act. On Monday, they dismissed a related case out of Louisiana. With the decisions, the high court effectively gives Democrats good chances of picking up a seat in each state, as the rulings are expected to prompt the creation of additional Black-majority districts.

Tuesday’s ruling, along with the previous decisions in the Alabama and Louisiana cases, have major implications for the 2024 election, and seem to move contrary to what was perhaps expected from the high court’s conservative supermajority.