Episode Details

Friends,

On June 30, the Supreme Court agreed to hear a case called Moore v. Harper. With all the controversial decisions handed down by the Court this term, its decision to take up this case slid under most radar detectors. But it could be the most dangerous case on the Court’s upcoming docket. You need to know about it.

Here’s the background: Last February, the North Carolina Supreme Court blocked the state’s Republican controlled general assembly from instituting a newly drawn congressional district map, holding that the map violated the state constitutional ban on partisan gerrymandering. The Republican Speaker of the North Carolina House appealed the decision to the U.S. Supreme Court, advancing what’s called the “independent state legislature” theory. It’s a theory that’s been circulating for years in right-wing circles. It holds that the U.S. Constitution gives state legislatures alone the power to regulate federal elections in their states.

We’ve already had a preview of what this theory could mean. It underpins a major legal strategy in Trump’s attempted coup: the argument that state legislatures can substitute their own judgment of who should be president in place of the person chosen by a majority of voters. This was the core of the so-called “Eastman memo” that Trump relied on (and continues to rely on) in seeking to decertify Biden’s election.

The U.S. Constitution does grant state legislatures the authority to prescribe “the Times, Places and Manner of holding Elections.” But it does not give state legislatures total power over our democracy. In fact, for the last century, the Supreme Court has repeatedly rejected the independent state legislature theory.

Yet if we know anything about the conservative majority now controlling the Supreme Court, it’s that they will rule on just about anything that suits the far-right’s agenda.

Conservatives on the Court have already paved the way for this bonkers idea. Then-Chief Justice William Rehnquist was an early proponent. In his concurring opinion in Bush v. Gore, the 2000 case that halted the recount in Florida in the presidential election, Rehnquist (in an opinion joined by Justices Antonin Scalia and Clarence Thomas) asserted that because the state court’s recount conflicted with deadlines set by the state legislature for the election, the court’s recount could not stand.

The issue returned to the Supreme Court in 2020, when the justices turned down a request by Pennsylvania Republicans to fast-track their challenge to a Pennsylvania Supreme Court ruling that required state election officials to count mail-in ballots received within three