The Supreme Court just heard arguments in Moore v Harper, a case that could hand state legislators unfettered power to manipulate our elections and undermine – or even ignore – our votes.
In this case, the conservative argument is known as Independent State Legislature Theory – a dangerous and desperate reading of the Constitution that threatens to upend our system of checks and balances and sow chaos and doubt in our elections.
So far, the Independent State Legislature Theory has been roundly rejected by the vast majority of legal scholars and by our courts, but if it is accepted by the Supreme Court, it would mean state legislatures would have the power to appoint any presidential electors to the Electoral College they want – regardless of the will of the people of their state, their state Constitutions, state laws that currently govern their presidential elections, or rulings by their state courts. You might still get to vote, but your state legislature could simply ignore any election outcome they don’t like.
And not only that – it would also mean redistricting maps would be unreviewable by state courts – making it easier for the party controlling a state legislature to entrench itself in power at both the state and federal level by gerrymandering districts and otherwise rigging the system in their favor. As well-respected conservative legal scholar and a former federal judge on the Fourth Circuit U.S. Court of Appeals, J. Michael Luttig explains in a comprehensive rebuttal to the theory, “Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.”
There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature…” - J. Michael Luttig
Could the Supreme Court Rule in Favor of Independent State Legislature Theory?
It seems hard to fathom that the court could adopt such a radical and unfounded view of the Constitution, but not so long ago, it seemed unfathomable that they would ever overturn Roe v Wade. And as Luttig points out, “as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years…”
Those six justices all have at least one thing in common – Leonard Leo. A former vice president of the Federalist Society, Leo is a Washington powerbroker who has funneled tens of millions in dark money into nominating ultraconservative Justices to the Supreme Court and has been involved with every SCOTUS nomination since Clarence Thomas. Leo even helped to handpick judges during the Trump administration as Trump’s ‘judge whisperer’ – the kinds of judges who would overturn Roe, and maybe even adopt the Independent State Legislature Theory. Now that they have a case before them, it is hard to say what they might do.
Who is Funding this Attempt to End Democracy?
At least one of Leo’s organizations that spent heavily to influence Supreme Court confirmations – 85 Fund – has also funded organizations that have filed amicus briefs in favor of handing state legislatures the power to overrule the will of voters in the presidential elections. Here are other some other megadonors supporting groups arguing in favor of ending democracy as we know it:
- The Lynde & Harry Bradley Foundation: $6,127,000
- Bradley Impact Fund: $478,353
- America First Works: $4,795,000
- Sarah Scaife Foundation: $3,625,000
- Searle Freedom Trust: $2,090,000
- Thomas W. Smith Foundation: $825,000
- Donors Capital Fund: $683,837
- 85 Fund: $400,000
- Ed Uihlein Family Foundation: $200,000