The case of Moore v. Harper, due to be heard Wednesday before the US Supreme Court, is said to have the potential to end democracy as we know it.
That is wrong, say legal scholars. But there is some debate about how to talk about this case, since bad actors in a state legislature can try to overturn election results even though the law clearly says they can’t.
The case in question, which centers on a dispute in North Carolina between the Republican-controlled Legislature and the state Supreme Court, is about drawing congressional district lines.
But the legal dispute that has arisen in this case is whether state legislatures can do whatever they want when it comes to elections, or whether state constitutions can limit them. If, some have argued, the Supreme Court’s conservative majority rules that state legislatures can do anything under what has become known as the independent state legislature theory, or ISLT, they can throw out election results they don’t like and insert their preferred candidate after voters have already cast their vote.
This was something that a few Republican suffragettes tried to do in 2020, and democracy advocates worry that the failed attempt is now being seen as a test run. Former President Donald Trump’s lawyers, as part of their effort to overturn his loss to Joe Biden, also argued that state lawmakers could throw out election results they didn’t like and impose a president of their choice on voters.
But hang on, legal experts have been saying for months. The Constitution clearly prohibits state legislatures from doing this, they say, and there is no real dispute on this point. So people should stop arguing that this case could give rogue state legislatures authority they don’t have now and won’t have in the future, regardless of how the Supreme Court rules in Moore v. Harper.
“The baseless speculation that it would authorize Trumpian state legislatures to stage a legal coup in 2024 by ignoring the results of the popular vote is worse than wrong. It’s dangerous,” wrote Matthew Seligman, a fellow at Stanford Law School’s Constitutional Law Center, which is an expert on contested elections. more probably in 2024.”
Seligman noted that even former Secretary of State Hillary Clinton, the 2016 Democratic presidential nominee, raised money for a Democratic group by warning that “the right-leaning Supreme Court may be ready to rule on giving state legislatures … the power to overturn presidential elections.”
“These allegations are unequivocally false,” Seligman wrote. His view has been echoed by many other legal scholars.
Moreover, the real threats from state legislators acting undemocratically would come before Election Day. “State legislatures can pass laws Before election day that allows them after the election to change or influence the outcome of the popular vote on election day,” wrote Bob Bauer and Jack Goldsmith, two formidable constitutional law experts with extensive experience in government.
But that threat will be neutered if Congress passes reforms to the Electoral Count Act of 1876, which it is expected to do this month. Senators who have been working on ECA reform all year have said they plan to pass it and have the votes to do so.
And so, Seligman wrote in Politico, “liberals (and really anyone who believes in democracy and the rule of law) may come to regret their overheated rhetoric in 2022.”
“The battle for the minds of Americans who don’t know the details of arcane constitutional doctrines will be much harder to win if those trying to overturn the 2024 election can point to the uninformed hyperventilation of their political opponents from just two years before and say: See, you already said that we have this power“, Seligman wrote. “Those who believe in the certainty of the law have a great responsibility to know what the law actually says. They should start living up to that responsibility.”
But some legal scholars have said there is cause for concern that the Supreme Court could rule in favor of very broad authority for state legislatures. If that happens, after the 2024 election, bad actors could use that ruling as a “fig leaf … to try to reverse the outcome of the presidential election and overturn the will of the people in a presidential election.” Rick Hasen saiddirector of the Safeguarding Democracy Project at UCLA.
Quinta Jurecic, a Brookings Institution fellow and senior editor at Lawfare, noted that “any state-level effort to raise the 2024 presidential election based on an over-the-top interpretation of the independent state legislature theory will depend in part on the fact that the theory is difficult for lay people to understand – and therefore open to distortion.”
Vicki Hausman, co-founder of Forward Majority, a group that has donated millions to help Democrats win back seats in state legislatures, did not dismiss the group’s warnings about the potential outcome of the Moore case.
“Anyone who thinks this is an overreaction has clearly forgotten what happened after the 2020 election,” Hausman said in a statement. “That’s why Democratic victories in state legislatures, especially in states like Michigan and Pennsylvania, in November were key to building a bulwark against the worst threats from ISLT.”
Seligman noted to Yahoo News that he doesn’t mind if people warn that a state legislature could try to overturn results after the 2024 election, as long as they clearly state that the U.S. Constitution prohibits it from doing so.
“We shouldn’t be providing (legally inaccurate) cover for rogue state legislators making the attempt in 2024,” Seligman said. “Imagine if Barack Obama had said in 2018, ‘We should be very afraid because Mike Pence has the constitutional authority to unilaterally reject electoral votes.’ And then Trump pointed it out in December 2020. I think that would have made things a lot worse.”