The landmark case hinges on the "independent state legislature" theory brought by North Carolina legislators, who want to eliminate the system of checks and balances governing federal elections and appropriate full power themselves. This could mean, for example, that state legislatures are free to appoint a slate of presidential electors as they see fit, regardless of which candidate a state's voters favored.
The theory asserts that under the U.S. Constitution, state legislatures have full authority to set the rules when it comes to making state laws that apply to federal elections, and that state constitutions and state courts have no power or authority over them. If the Supreme Court affirms the theory in deciding the Moore case, state legislatures will effectively be freed to gerrymander electoral maps and pass restrictive voting laws with little to no supervision by state courts or other entities.
Some legal experts have even suggested that the independent state legislature theory could create a pathway for election subversion. Legislators could throw out election results they don't agree with, as mentioned above, and appoint their own presidential electors.
But others are concerned about where the money is coming from in backing the theory.
"It's obviously a fringe, extremist legal theory that's being funded by these wealthy conservative donors, and these are people who know their extreme agenda isn't popular," said Kayla Hancock, director of power and influence at Accountable.US. "So they're spending millions of dollars to stack the Supreme Court and chip away at our democratic rights and freedoms by influencing these institutions."
The independent state legislature theory has previously been rejected by a majority of Supreme Court justices and is widely viewed as well outside the mainstream of legal thought, even for high-profile judicial conservatives, as Mother Jones has reported.
But over the last two years, that changed with the founding of a nonprofit called the Honest Elections Project, which has promoted the theory extensively. The group is closely linked to Federalist Society co-chairman Leonard Leo, seen as immensely influential in building the current Supreme Court's conservative supermajority.
Leo has a history of operating a network of interlocking nonprofits that support right-wing advocacy and lobbying. He helped conservative nonprofits raise $250 million from mostly undisclosed donors to promote conservative judges and causes. He advised Donald Trump during the nominations of Supreme Court Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, according to Accountable.US.
"It's interesting to see that this man, who has all this power in influencing the court and the structure of the court, is also funding groups that are filing amicus briefs to try and influence that same court," Hancock said. "A lot of these groups that Leo is funding are also engaging in advocacy work to place restrictions on ballot access and gerrymandering. So I think it's broader than just this legal theory. It's an all-out assault on our elections."
The Honest Elections Project stoked fears about voter fraud prior to the 2020 election and even wrote letters to election officials in Colorado, Florida and Michigan that relied on misleading data to accuse jurisdictions of having bloated voter rolls and threaten legal action, the Guardian reported. The group also spent $250,000 on ads against mail-in voting, calling it a "brazen attempt to manipulate the election system for partisan advantage." In fact, there have been almost no verified cases of fraud in voting by mail anywhere in the country, and many Republicans have blamed their party's relatively poor showing in the 2022 midterms on a reluctance to encourage mail-in voting
Since its founding, HEP has advocated against laws designed to expand voting access. It also sued the state of Michigan, forcing the state to clean up its list of registered voters, and blocked a settlement in Minnesota that eased absentee voting rules.
In 2020, the group submitted a legal brief in support of Pennsylvania's Republican Party, which asked the Supreme Court to overturn a state court decision that allowed mail-in ballots postmarked by Election Day to be counted if they arrived up to three days later. The Pennsylvania Supreme Court had ordered the three-day deadline extension to "prevent the disenfranchisement of voters" due to postal delays during the COVID-19 pandemic.
Referencing the U.S. Constitution's Elections Clause and Electors Cause, the Honest Elections Project argued that state legislatures are "vested with plenary authority that cannot be divested by state constitution to determine the times, places, and manner of presidential and congressional elections."
Along with the Honest Elections Project, four other right-wing groups have filed amicus briefs in Moore v. Harper Amicus Briefs supporting the independent state legislature theory, including the American Legislative Exchange Council (known as the conservative "bill mill"), the Public Interest Legal Foundation, America's Future Inc. and the Claremont Institute, where election conspiracy theorist John Eastman wrote the now-infamous memos urging Vice President Mike Pence to reject the electoral votes from certain states.
DonorsTrust, which has been described as the "dark money ATM" of the conservative movement, has funded a majority of the donations, giving almost $70.5 million to these groups, according to the Accountable.US report.
The group funnels anonymous donations to hundreds of organizations, including several right-wing legal and policy groups favored by the Koch network as well as other mega-donors, according to Sludge.
"These groups that operate behind the scenes, they know that their agendas are unpopular and so they're using broad networks of right-wing organizations to try to influence the courts," Hancock said. "In this specific instance, these people are going in front of the courts in order to advance their fringe agenda from the shadows, because they know they're not going to be able to enact these unpopular policies otherwise."
Three Supreme Court justices have signaled apparent support for the independent state legislature theory, but North Carolina legislators would need at least two more votes to prevail. Voting rights advocates have warned that the theory could fundamentally reshape the mechanisms of American politics and bring immense chaos to the electoral process. The court is expected to issue a ruling next summer.