One man could hand an election victory to former President Donald Trump, even if he loses on Election Day, a gerrymandering expert warned Thursday.
Chief Justice John Roberts is perfectly positioned to override results of the 2024 presidential election thanks to a Supreme Court gerrymandering ruling that served as an election-rigging Trojan horse, New Republic contributor David Daley argued.
"There are any number of scenarios under which the time bombs embedded within that 'historic pro-democracy' decision — it was 2023’s Moore v. Harper — could open the door for Chief Justice John Roberts and the court’s conservative supermajority to determine the outcome of the 2024 presidential election," wrote Daley.
"From this court, so thoroughly outsourced to the Federalist Society, GOP operatives, and billionaire oligarchs, it’s truly terrifying."
Daley argued Thursday that Moore v. Harper — in which the court ruled state legislatures must abide state constitutional restraints set by the Elections Clause — could well prove to be an "antidemocratic travesty" that surpasses the impact of Bush v. Gore.
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Moore v Harper appeared to swat down a "fringy reading of the Constitution" called "independent state legislature" theory argued by North Carolina Republicans pushing a gerrymandered congressional map, but didn't go quite as far as it initially appeared, Daley wrote.
In fact, the theory — which would grant state legislatures wide latitude over gerrymandering — received subtle protections from Roberts in his majority decision, argued Daley.
"The price for rejecting the most wild-eyed version of the theory was inducing the liberal justices to sign onto a decision that adopted a milder version of the doctrine," he wrote.
"Call it the independent legislature–lite approach with half the lunacy but all the danger of the U.S. Supreme Court overriding state courts and determining election outcomes itself. What could go wrong?"
One potential problematic outcome derives from what New York University law professor Rick Pildes described as a worrying vagueness in the statute Roberts set.
The decision does not set any boundaries to guide lower courts when it would be appropriate for federal courts to override the state, the professor warned.
"In other words, here is a high court conservative majority—which, by the way, includes three lawyers who helped develop and argue George W. Bush’s case in Bush v. Gore—announcing that it can put its thumb on the scale in a future election, without defining the standard for that action in advance," Daley wrote.
"Given that every major decision that the Roberts court has made on voting rights and democracy has aligned with the political interests of the GOP, it’s dismayingly easy to imagine that the standard will become yet another dressed-up version of heads Republicans win, tails Democrats lose."
