Experts Warn Supreme Court Supporting ‘Dangerous’ GOP Legal Theory Could Destroy US Democracy

Progressive campaigners in North Carolina warned Monday that a once-fringe conservative legal theory that the U.S. Supreme Court shall take up in the coming months poses a serious threat to representative democracy.

The nation’s highest court shall hear Moore v. Harper, a case involving North Carolina’s racially rigged congressional map, sometime in December or early next year—meaning the outcome won’t affect the 2022 midterm elections.

After North Carolina’s GOP-controlled Legislature prejudicially redrew the state’s congressional map to lock in 10 of its 14 districts for Republicans, the state Supreme Court struck down the map, which it described as an “egre­gious and inten­tional partisan gerry­mander… to enhance Repub­lican perform­ance.”

Republican state lawmakers appealed, citing independent state legislature theory (ISLT), which the pro-democracy group Common Cause calls a “dangerous legal argument” increasingly popular in right-wing circles positing that only state lawmakers can regulate federal elections, not its judiciary—or even its constitution.

The elections clause and presidential electors clause of the U.S. Constitution explicitly empower state legislatures with regulating federal elections and appointing electors, respectively.

However, according to the Brennan Center for Justice:

The dispute hinges on how to under­stand the word “legis­lature.” The long-running under­stand­ing is that it refers to each state’s general lawmak­ing processes, includ­ing all the normal proced­ures and limit­a­tions. So if a state consti­tu­tion subjects legis­la­tion to being blocked by a governor’s veto or citizen refer­en­dum, elec­tion laws can be blocked via the same means. And state courts must ensure that laws for federal elec­tions, like all laws, comply with their state consti­tu­tions.

Proponents of the inde­pend­ent state legis­lature theory reject this traditional read­ing, insist­ing that these clauses give state legis­latures exclus­ive and near-abso­lute power to regu­late federal elec­tions. The result? When it comes to federal elec­tions, legis­lat­ors would be free to viol­ate the state consti­tu­tion and state courts could­n’t stop them.

Purveyors of former President Donald Trump’s “Big Lie” that the 2020 presidential election was stolen—including Ginni Thomas, a right-wing activist and wife of Justice Clarence Thomas—invoked ISLT during their efforts to pressure state lawmakers to help overturn President Joe Biden’s Electoral College victory.

Experts including Michael Luttig, a former federal judge and distinguished conservative jurist, have warned than ISLT is a central pillar of the “Repub­lican blue­print to steal the 2024 elec­tion.”

Originally published at Commondreams.org.