The Supreme Court will examine the radical theory of the independent legislature


A few months ago, former United States Court of Appeals Judge J. Michael Luttig, a giant in conservative legal circles, wrote a surprisingly bold and widely read article, editorial. In his article for CNN, the jurist, who has spent much of his adult life Operating “at the top of the conservative legal world,” warned Americans that Republicans would try to steal the next election.

Luttig’s warning even described the tool GOP officials would use to execute their plot.

Reflecting on the plan hatched by Donald Trump and his team, Luttig argued that the cornerstone of the Republican plan was to get the Supreme Court to approve an arcane idea called the doctrine of the “independent state legislature,” which, according to the plot, would make possible the nullification of election results by allowing then-Vice President Mike Pence to reject electoral votes from certain states.

“The Doctrine of the Independent State Legislature provides that, under the Election and Election Clauses of the Constitution, the State Legislatures possess full and exclusive power over the conduct of Federal Presidential elections and the selection of State Presidential electors”, Luttig said. Explain. “Not even a state supreme court, let alone other state election officials, can alter the written election rules of the statute or interfere with the nomination of state voters by the legislatures, according to this theory.”

This may sound complicated, but it need not be: State legislatures do not have exclusive authority over elections. There are state laws, state constitutions, state election procedures, and state courts that help dictate the process. But under the so-called “independent state legislature” doctrine, lawmakers would have the power to circumvent these other checks and act unilaterally.

This all took on dramatic significance yesterday. BNC News reported:

The Supreme Court agreed on Thursday to decide whether legislatures, and not state courts, have final authority to decide how elections are conducted for federal candidates, addressing a challenge on the new map of North Carolina’s Congress. Republican lawmakers are challenging a state Supreme Court ruling that rejected the legislature’s map for redrawing congressional district boundaries following the last census. The court said the map was overly partisan and violated the state constitution by not reflecting the general makeup of North Carolina’s political parties.

Again, I can understand why the specifics of the dispute may seem dry and technical, but it’s important to understand the underlying principles at play in Moore v. Harper.

Rick Hasen, a professor and election law expert at the University of California, Irvine, told NBC News that a Republican victory in the case would “dramatically alter the power of state courts to rein in state legislatures that violate law. This could essentially neutralize the ability of state courts to protect voters under the provisions of state constitutions from infringement of their rights.

A politician report added, “With 30 state legislatures currently in Republican hands, GOP state legislative leaders would be in a strong position to skew the cards in favor of their party and to make the changes Republicans have demanded to voting procedures. “

An analysis by HuffPost went further. “Siding with the North Carolina Republicans could effectively give all electoral authority to state legislatures, including in endorsing the winner of voters in the state’s Electoral College,” Paul Blumenthal argued.

There’s no doubt that the Supreme Court’s just-ended term has clearly shown just how far the institution has swung to the right, but that doesn’t mean Republican-appointed justices won’t go yet. further away.


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