Supreme Court hears arguments on Election Law Case and its implications for Democracy

Oral arguments will be heard by the high court in a case that includes a legal theory. Some fear it could undermine American democracy and upend legal tradition.

The Supreme Court finished its final term in summer. It was capped by a series of rulings that appeared to be troubling large swathes of the public, and the justices quietly announced that they would continue with another case.

Moore v. Harper was an election law case that involved a fringe theory of law, which some fear could threaten democracy.

On Wednesday, the justices will hear oral arguments in the case. Experts argue that it could drastically change elections and disrupt the separation of power relied upon by the American Government by giving the state legislatures unilateral authority to establish election rules.

This case, which stemmed from a North Carolina dispute about the drawing of congressional maps in North Carolina, is based on the idea of the “independent State Legislature” theory. This theory is based on a very literal reading of the Constitution. It effectively states that the final rule for elections should be made by the state legislatures, leaving aside state courts and governors.

A group of Democratic voters requested a North Carolina Supreme Court to reject a new congressional map. Republican state legislators went to the U.S. Supreme Court on an emergency basis. They argued that the court had violated the Constitution’s elections clause, which states that “times and places for holding elections” should be decided by the state legislatures.

“The question raised here is fundamentally about the nation’s democratic republic: What entity has the constitutional authority for establishing the rules of the road to federal elections and the means we use to exercise self-government?” the Republican legislators wrote in an emergency application.

Some argue that giving the state legislatures unilateral power runs the risk of allowing them to gerrymander with no oversight, disregard their popular vote, or appoint their electors to try to change election results. This could pose a serious threat to democracy before the 2024 presidential elections.

Eric Holder, former Attorney General of the United States, has warned of the case’s significant implications for American democracy. He said on CBS’ Face the Nation on Sunday that he was “extremely worried” about the outcome.

He said, “This is very, very dangerous.” It would threaten our system of checks & balances.”

Marc Elias is a prominent Democratic election lawyer and told MSNBC that the stakes were “unbelievable.”

Elias stated that this fringe theory would suggest that state courts cannot apply their state constitutions to federal election laws that are passed by the legislature. “This would effectively shut down the state courts’ ability to police the worst forms of voter suppression or election subversion.”

Even conservatives have asked the high court to reject the legal theory. J. Michael Luttig is a former federal judge, who was appointed by George H.W. Bush recently joined the team as co-counsel to those opposed to the legal theory. He described the case as “the most important case of American democracy in almost two and a quarter centuries since America’s founding” and was quoted in The Atlantic earlier in the year.

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The legal theory does have a few supporters, including John Eastman who was an attorney who helped Trump win the 2020 election. Eastman asked the high court for acceptance of the independent state legislature theory.

The legal theory was revived by a series of lawsuits in state courts regarding rules that were implemented in 2020 to increase access to voting during the coronavirus outbreak. This became the basis for Republican challenges to the voting rules of that era and then later, it was central to Trump’s attempt to reverse the results of the 2020 presidential election.

In 2020, Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, seemed to support the legal theory. He wrote that “the Constitution requires that the state legislatures – and not federal judges, state judges, or other state officials – bear primary responsibility for setting elections rules.”

In March, the high-court declined to grant the Republican request for an emergency stay of North Carolina Supreme Court orders. However, it decided to hear arguments. Although he did not explicitly endorse the theory, Justice Samuel Alito wrote in an opinion jointly by Justice Clarence Thomas, Gorsuch, that the case was “an extraordinarily important and recurring issue of constitutional law.”

Alito wrote that “if the Elections Clause language is taken seriously, there must exist some limit on state courts’ authority to countermand actions taken by state legislatures when they are prescribing rules regarding the conduct of federal election.” I believe it is probable that the applicants will succeed in proving that the North Carolina Supreme Court exceeded these limits.

It’s a question that extends far beyond North Carolina and that this group of justices with a GOP supermajority seem eager to answer.

The case may not be decided by Justice Amy Coney Barrett because of the apparent interest shown by four justices in legal theory, unless her conservative colleagues reconsider.

Some argue that a ruling favoring the legal theory would immediately give more power to Republicans who control more state legislatures than Democrats. The ruling would likely give enormous power to the GOP supermajority at the high court. This would allow it to have final say in all election law disputes that arise in states. State courts are not affected. The high court could decide every election in a given state.

Represent Us reports that if the Supreme Court supports the theory, over 200 provisions in state constitutions relating to voting could be at stake. This includes absentee and voter ID requirements as well as Ranked Choice voting.

This major case, perhaps the most important of them all, comes at a time when the justices are embroiled in legitimacy crises in recent months.

The public’s confidence and approval in the institution are slipping months after the court ruled on abortion, guns and the environment.

Gallup polling shows that 47% of Americans were surveyed in September and said they had at least some trust in the judiciary, led by the Supreme Court. This is a record low, which was 20 percentage points lower than two years ago.

The disclosure that Justice Clarence Thomas’ wife, who is among the most conservative members of the bench, encouraged several individuals to try to overturn the 2020 presidential elections has raised Democrats’ concerns about a politicized court. A leak of the draft opinion which would eventually overturn Roe V. Wade and other reports of leaks of cases concerning similar issues have raised more concern about the court as a whole and its ability to fulfill its role of arbiter of law and guardian to the Constitution.