‘Blast radius’ of fringe legal theory could sow election chaos, Supreme Court hears

For more than three hours, US Supreme Court justices heard oral arguments in a case that could radically reshape the nation’s elections, weighing the legitimacy of a fringe legal theory supported by right-wing groups and Republican officials that opponents warn could “sow chaos” throughout American democracy.

US Solicitor General Elizabeth Prelogar warned justices on 7 December that the so-called “independent state legislature” theory would “wreak havoc” on the electoral process and invalidate state constitutions across the country.

“I’m not sure I’ve ever come across a theory in this court that would invalidate more state constitutional clauses as being federally unconstitutional,” said Neal Katyal, a former acting solicitor general under Barack Obama’s administration who is arguing the case on behalf of voting rights groups and Democratic voters.

“The blast radius from their [independent state legislature] theory would sow elections chaos, forcing a confusing two-track system with one set of rules for federal elections and another for state ones,” he told justices.

The case of Moore v Harper involves North Carolina’s congressional map, which a state Supreme Court ruled was an illegal partisan gerrymander drawn up by the state’s GOP-dominated legislature. Republican state legislators have asked the Supreme Court to toss out the new map, advancing a theory that state lawmakers have exclusive authority to set the rules for federal elections – a theory that also animated the bogus legal arguments behind Donald Trump’s attempts to overturn the 2020 presidential election.

The case kicked off when North Carolina’s Supreme Court rejected both the newly drawn congressional map drawn by GOP lawmakers and the “independent state legislature” argument used to defend it. The court dismissed the theory as “repugnant to the sovereignty of states” as well as “the authority of state constitutions and the independence of state courts” and “would produce absurd and dangerous consequences.”

North Carolina Republicans, with support from an influential right-wing legal group, appealed to the Supreme Court with a question invoking the “independent state legislature” theory at the centre of its argument.

The election clause of the US Constitution asserts that the rules for federal elections “shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”

The longstanding interpretation of that foundational clause is that election rules established by state legislatures must – like any other law – conform with state constitutions, which are under a court’s jurisdiction for review as to whether they are constitutional or not.

But the “theory” advanced in this case would mean that elected members of a state legislature have absolute authority to determine how elections for members of Congress and the president are performed, overriding state constitutional protections for the right to vote and efforts to combat partisan gerrymandering, among other provisions.

Ms Prelogar urged justices to reject the “atextual, ahistorical and destablising interpretation” of the election clause.

“For 233 years, states have not read the Elections Clause the way you just heard,” Mr Katyal said.

The theory argues that “for two centuries, nearly everyone has been reading the Elections Clause wrong,” he said.

Justice Kagan warns against ‘big consequences’ of fringe theory that could upend elections

Notably, retired federal judge and conservative legal scholar J Michael Luttig – who advised then-Vice President Mike Pence in lead up to 6 January, 2021, when Mr Trump relied on a pressure campaign to convince Mr Pence to overturn the results of the 2020 election – is Mr Katyal’s co-counsel.

Mr Luttig had previously warned that the theory was central to the “Republican blueprint to steal the 2024 election.”

“The independent state legislature doctrine was the centerpiece to Trump’s effort to overturn the 2020 election,” he told CNN. “I have believed since [6 January] that I had a responsibility to the country to explain why I rejected the theory in advising the vice president.”

The court’s three liberal justices overwhelmingly rejected the interpretation, but three conservative justices on the nine-member panel – Justice Samuel Alito, Neil Gorsuch and Clarence Thomas – sought to dismiss arguments from the theory’s opponents while appearing sympathetic to the theory.

Chief Justice John Roberts and conservative Justices Brett Kavanaugh and Amy Coney Barrett could ultimately determine the scope of the theory, if they side with their three conservative colleagues in a ruling, which is not expected until next year.

“Vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants,” said Justice Roberts, pointing to a landmark Supreme Court case that affirmed that the Constitution did not prohibit governors from vetoing congressional maps approved by state legislatures.

Justice Ketanji Brown Jackson said she “can’t wrap [her] head around” the argument that state legislatures would be allowed to violate state constitutional protections.

“This is a theory with big consequences,” said Justice Elena Kagan.

She said the theory would permit even the “most extreme forms of gerrymandering … even if the court thinks it’s a violation of the constitution” and would “get rid of all kinds of voter protections that the state constitution in fact prohibits.”

State lawmakers could potentially “assert themselves in the certification of elections and the way in which election results are calculated,” she said.

“In all these ways, I think what might strike a person is that this is a proposal that gets rid of the checks and balances,” she said. “You might think it gets rid of those checks and balances when they are needed most.”

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