The Supreme Court and the health of democracy
On Moore v. Harper
I have a new piece out in The Atlantic today on Moore v. Harper, a major upcoming case in which the Supreme Court will hear arguments on December 7. Even if you’re not a close court-watcher, you may have seen headlines about Moore describing the case as something that could “upend democracy” or “imperil democracy.” Those descriptions are not wrong. But at the same time, the story of Moore is more complicated than a lot of press coverage has depicted it.
The short version is that Moore concerns the level of freedom that state legislatures have in determining how states will administer federal elections for both Congress and the presidency. Proponents of what’s called the “independent state legislature theory” argue that particular language in the Constitution grants power not to states to administer elections, but to state legislatures specifically—meaning that legislatures might not be subject to typical constraints by state constitutions and courts. (The federal Constitution and the federal courts would still have sway.) Depending on which variation of the theory you adopt, this could lead to all kinds of chaos that would upend election administration and lead to a bonanza of federal litigation around elections. It could also seriously limit the ability of state courts to enforce state constitutional protections for voting rights and against partisan gerrymandering. (The reasons why are complicated, but I do my best to sketch them out in the Atlantic essay.)
At the same time, the theory—or at least the version of the theory that’s been sketched out before the Court—would not allow state legislatures to simply upend the results of the popular vote and hand presidential electors to their preferred candidate. For that reason, I think that press coverage that describes the case as potentially blessing Trump’s ability to “steal the 2024 election” can be misleading. It is true, though, that the environment of chaos and distrust created by prolific election litigation could help fuel claims of election fraud like we saw in 2020.
To write this piece, I read through a mountain of amicus briefs filed before the Court, along with the impressive amount of recent scholarship that has been produced both calling into question the historical foundations of the independent state legislature theory and sketching out the chaos that could result from the Supreme Court’s endorsement of the idea. There are a wide range of iterations of the theory, and the amicus briefs filed in favor of the petitioners—the North Carolina legislators who are pushing the theory—run the gamut in terms of how they conceptualize what limits the theory would and wouldn’t place on state legislatures. But as a number of amicus briefs filed in support of the respondents note, none of those iterations are really workable for the courts to implement. The experience of trying to make sense of them made me feel a bit like Charlie in the famous conspiracy pinboard scene from It’s Always Sunny in Philadelphia.
If you’re interested in reading more, the Brennan Center has a useful overview of some of the more significant amicus briefs filed in the case.
Overall, my takeaway is that an extraordinary amount of ink has been spilled on a legal theory that has remarkably little weight behind it. But that’s a reflection of where we are as a country, on both the political and legal fronts. The fringe and the absurd have become mainstream. The challenge is how to identify the ridiculous as such while also taking the potential effects of that ridiculousness seriously.
Any state-level effort to upend the 2024 presidential election on the basis of an exaggerated interpretation of the independent state legislature theory would depend, in part, on the fact that the theory is difficult for laypeople to understand—and therefore open to distortion. This complexity has shaped public discussion around Moore as well. Evaluating the potential danger posed by the case requires pulling apart a series of interlocking questions: Is the independent state legislature theory correct as a matter of law? What kinds of effects would the theory have if implemented in good faith? How could the theory be employed by bad-faith officials looking to get away with something? And would the federal courts intervene to stop them?