The U.S. Supreme Court is poised to put Republican-engineered election restrictions out of reach from state courts, which could hand the presidency to Donald Trump in a contested election.
The court's ruling in Moore v. Harper, which would decide whether the state Supreme Court can strike down North Carolina's partisan gerrymandered redistricting map, could validate the "independent state legislature" theory that animated Trump's last gasp to remain in power and benefit any GOP candidate who runs in 2024, wrote Washington Post columnist Greg Sargent.
"That has generated much discussion of how the theory could enable hyper-partisan gerrymandering," Sargent wrote. "But it could also enable more election subversion, which could dovetail with the looming Trump threat in combustible ways. Even if Trump doesn’t run, the tendencies he’s unleashed — Republicans are running for positions of control over election machinery while essentially vowing to treat future elections as subject to nullification — could be made more dangerous by the court’s ruling."
At least four justices have already signaled they're open to the theory, which has been debunked by recent scholarship, but could unleash legal chaos if a state legislature and governor passed a law before Election Day that would give them power to appoint whatever electors they wanted -- regardless of what voters decided.
“Under the theory, state constitutions could no longer serve as a check on a legislature that seeks to replace the voters’ voice with their own in selecting presidential electors,” said Helen White, counsel at the nonpartisan group Protect Democracy. “Those checks are robust after the election, but before the election, because this has not been done in modern history, we would be in relatively uncharted and radically undemocratic territory.”
No state legislatures went along with Trump's scheme in 2020, and some attempts since then have failed, but Trump-backed candidates such as Pennsylvania gubernatorial candidate Doug Mastriano have endorsed the theory that electors can be appointed over the will of voters, who would be left with little recourse to challenge those results.
“One nightmare scenario is that a Republican state legislature, potentially with a Trumpist governor, passes a law saying the state legislature itself is the final canvassing board for the state,” said Matthew Seligman, an election law scholar. “Under the theory, state courts and state constitutions would place no constraints on such a radically anti-democratic partisan putsch."