The U.S. Supreme Court ended its historic 2021-2022 term announcing several cases for the next term that are sure to put its Conservative super-majority’s influence to the test.
Among those on the docket for the 2022-2023 term, starting the first Monday in October, is the partisan gerrymandering case of Moore v Harper, which could redefine the balance of power within each of the 50 states over who decides elections—just months before we vote in the 2024 Presidential election.
Moore v Harper Centers on Independent Legislature Theory
In Moore v Harper, the state of North Carolina is advancing a Constitutional argument called the “independent state legislature theory.” It asserts that a state’s legislators have sole authority over its elections, to the exclusion of its governor—or its courts. In other words, the state’s legislators are the first and last word on an election, and no legal challenge can even be considered.
Matthew Weil, Director of the Elections Project at the Bipartisan Policy Center in Washington, makes no predictions, but he tells Political IQ that if the Court does rule in favor the independent legislature theory, it would be “a very disruptive ruling.”
“The problem that we find almost all the time with election laws is that there are gray areas. There’s ambiguity, and someone has to decide what that means,” he explains. “With an independent legislature theory, we could end up with a situation where the legislature’s always trying to be that chief election official, trying to define what everything is supposed to mean in real time. And the legislature can’t act that quickly.”
One big reason: a lot of state legislatures don’t even meet all year ’round.
He says that’s why we have state secretaries of state. “They often have to issue guidance about what the law means in the context of whatever is happening in that election.”
Court Ruling Could Spark Rush of New Laws Ahead of 2024 Election
Weil further notes, “If the Court does affirm the independent legislature theory, the ruling will come down in June of 2023, so about 15 months ahead of the Presidential election season.”
He says that would likely lead to “massive amounts of legislation very quickly” because states legislatures would know they can’t be challenged in their own state supreme courts.
What would that look like? “I think we would see a very quick split into red and blue election administrations,” says Weil. Blue states would expand voter access “not caring about the security threat as much,” while red states would clamp down on access and impose “ever-increasing security restrictions,” like intensified voter I.D. laws.
Should Justice Thomas Recuse Himself?
The Court doesn’t yet have a date set for when it will hear opening arguments in Moore v Harper, but the case will be argued as conservative activist Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, has come under fire for her alleged attempts to interfere in the 2020 Presidential election.
This past week The Washington Post reported that, along with Arizona’s, Mrs. Thomas pressed Wisconsin’s state legislators to set aside President Biden’s popular vote victory and “choose” their own Presidential electors.
Mrs. Thomas’ status as a leading conservative activist, as well as her reported actions, have set her apart from other Supreme Court spouses and led to calls for Justice Thomas to recuse himself from any cases related to the 2020 Presidential election.
So far, Justice Thomas has not. For instance, January 6 Committee Member Rep. Adam Schiff (D-CA) noted that Thomas did not recuse himself when former President Trump asked the Supreme Court to block the House investigative panel from getting access to his White House records. When the Court declined to block release of the documents, Thomas was the only Justice who dissented, siding with Trump.
Justice Thomas has recused himself 54 times in the 29 years he’s been on the Court, including 1995’s Virginia v U.S., challenging the Virginia Military Institute’s male-only policy, because Thomas’ son was a cadet at the time. So, he’s not unfamiliar with the concept of recusal.
Meanwhile, January 6 Committee member Rep. Jamie Raskin (D-MD) said Sunday that Mrs. Thomas “has a relevant testimony to render, and she should come forward and give it.” But when pressed about subpoenas (answering a question specifically about former Vice President Mike Pence), Raskin replied, “We’re trying to get everybody to come forward voluntarily,” but then added, “In no one’s case is a subpoena out of question.“
Will Electoral Count Act Reform Impact the Supreme Court’s Ruling?
Both the House and the Senate are working on updated versions of the 1887 Electoral Count Act (ECA), which provided much of the basis for Trump’s attempt to overthrow the 2020 Presidential election.
It’s expected to contain updated language regarding how the ECA allows for state legislatures to choose electors if that state somehow “failed to make a choice” on Election Day.
Right now, that language is somewhat broad and ambiguous. Weil says the conversations in both Houses of Congress have revolved around more narrowly defining a “failed election” along the lines of, “something happens that doesn’t allow voters to vote on Election Day,” like a natural disaster or a terrorist attack.
“So a ‘failed election’ couldn’t be something like, ‘we think it was fraudulent,'” he says. “That’s not a failure to vote on Election Day.”
And, he says, this is one of the “critical points” in the upcoming ECA reform law. He posits, “If we leave in kind of an open-ended failed election clause, it doesn’t solve the problem that we saw happening in 2020, right?” If the language doesn’t get updated, and a state’s legislature can simply call a “failed election” what it decides is fraudulent voting, “you put that on top of that the independent legislatures doctrine, I don’t know where you challenge it.”
Last week, Rep. Zoe Lofgren (D-CA) said the House’s bipartisan ECA working group had “a pretty good work product, and we’ll be collaborating with our Senate partners to see if we can meld different versions.”
The bipartisan authors of the Senate’s version of ECA reform are pushing to get their legislation voted on during the few narrow windows available to them this fall. Between now and Election Day, the Senate is scheduled to be back in Washington for four weeks, then out for a week, and then back for two weeks in October.
Sen. Chuck Grassley (R-IA) recently became the 10th Republican to sign on to the legislation, potentially making the ECA reform bill filibuster-proof in the Senate.
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