On its face, Moore v. Harper, the case being considered by the Supreme Court on Wednesday, deals with whether the North Carolina Supreme Court acted within its rights last year. In 2021, the state’s highest court overturned the congressional redistricting maps drawn by the GOP-controlled state Legislature for being gerrymandered along partisan lines.
The Independent State Legislature doctrine could open the door to giving state legislators the power to decide, for example, which presidential candidate will receive their state’s Electoral College votes.
But the reality is that the impact of the justices’ eventual ruling in this case could extend far beyond the state or the once-per-decade process of drawing congressional districts. That’s because the plaintiffs appealing the North Carolina court’s ruling are employing a fringe legal theory — the so-called Independent State Legislature doctrine, or ISL — that argues the U.S. Constitution grants unique power over federal elections to state legislatures.
In their opening brief to the Supreme Court, attorneys for the Republican state lawmakers invoked a sweeping interpretation of the Constitution’s Elections Clause, arguing that “the power to regulate federal elections lies with state legislatures exclusively.”
If taken to its radical extreme, this reading of the Constitution would give state lawmakers, not governors or state courts, authority over not only how the maps get drawn but also over all the rules about how federal elections are administered, how the votes get counted and even which candidate wins.
You heard that right: If endorsed by the Supreme Court, the Independent State Legislature doctrine could open the door to giving state legislators the power to decide, for example, which presidential candidate will receive their state’s Electoral College votes regardless of how the people actually voted. In practice, we could see a rogue legislature, displeased with their state’s election results, spur manufactured chaos and delays and invoke the ISL as justification for them to step in and unilaterally send its own slate of electors to participate in the Electoral College vote for president — with no clear path for the state’s governor or courts to check their actions.
Though the Elections Clause hasn’t been understood this way in the past, such a reinterpretation isn’t all that hypothetical. In the aftermath of the 2020 election, former President Donald Trump used ISL as the centerpiece of his efforts to convince Republican lawmakers in key states to overturn the will of their voters and declare him the winner, thereby handing him a second term.
It didn’t work then, but if ISL gets the stamp of approval from the Supreme Court’s current rightwing supermajority, it might work in 2024 if Trump or another antidemocracy candidate attempts to steal the election again. If so, the idea of American democracy as we’ve known it would be dramatically altered. Validating ISL would undermine our foundational system of checks and balances — usurping the role of state governors, courts and constitutions in the election process — and would hand over even greater power to extreme partisan legislators.
Those are the stakes in this case. No pressure.
Unfortunately, it’s highly likely that the court does go down this dark path. At least four justices have already signaled some level of openness to ISL — just one short of the majority, with Trump-appointed Justice Amy Coney Barrett positioned to potentially serve as the swing vote.
The most important antidote, in that case, is electing as many pro-democracy lawmakers to state legislatures as possible — lawmakers who will uphold the voice of the voters and stand up against efforts to undermine elections in their states.
At The States Project, we’ve put our money where our mouth is. We invested nearly $60 million in state legislative efforts throughout the 2022 cycle to defend and build governing majorities in key state chambers that would be in a position to prevent the theft of the 2024 presidential election while promoting efforts that would safeguard democracy, protect individual rights and improve people’s lives. Given the imminent threat posed by a ruling on Moore v. Harper and the large number of Republicans serving in state legislatures who are election deniers, we prioritized electing Democratic majorities that could serve as a bulwark against future election subversion attempts in their states.
This historic investment in these chambers — larger than any other outside effort focused on state legislative races in a single cycle — paid off in spades. Backed by our investment, pro-democracy candidates made significant gains in key states, including in places where we spent heavily despite others doubting the victories we envisioned were possible.
We went all in on Michigan, helping to flip both chambers and creating the state’s first Democratic trifecta in nearly 40 years. We doubled-down in Pennsylvania, tuning out the naysayers and winning back the House from the right-wing majority for the first time in a decade.
And we refused to give up on Arizona, even when others called it a long shot — and now we expect that, when all the results are certified, Democrats will have held their ground in the state that has been called “‘Ground Zero’ of America’s democracy crisis.”
But while the importance of these wins cannot be overstated, they do not offer a permanent solution. There is always another election — a new opportunity for anti-democracy forces to again seize power. With the Supreme Court potentially lending their imprimatur to ISL this spring, each state legislative election could put the integrity of our democracy at risk.
For those of us who believe in democracy, that means only one thing: We cannot rest on our laurels. We must continue to treat state legislative campaigns like the crucial races they are and invest in them accordingly. Not just for one cycle, but every cycle.
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