Experts alarmed as Supreme Court weighs giving state legislatures limitless powers to rig elections
US Supreme Court (supreme.justia.com)

Former President Donald Trump's former legal advisor John Eastman penned a 2020 election memo that urged Republican-controlled state legislatures to overrule certified election results based on mere accusations of fraud.

While Eastman's theory of the power of state legislatures to reject certified elections was never put to the test, The Atlantic reports that another potentially radical interpretation of state legislatures' powers has made its way to the United States Supreme Court.

Over the past several months, many legal experts have penned "friends of the court" briefs debating Moore v. Harper and the constitutional arguments for and against it.

At the case's heart is a debate over the power of state legislatures that is based on the following words in the United States Constitution: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations."

State governments set the rules for federal elections and state races. In some states this year, they elected a governor and a U.S. Senator on the same ballot, because the Constitution says they can decide how their elections work. The state legislative theory uses the words "the legislatures thereof" to justify other state-level entities like courts or state legislatures intervening.

"At the center of Moore is a ruling by the North Carolina Supreme Court throwing out an aggressively gerrymandered congressional map put together by the state’s Republican legislature, which the court found violated the state constitution," the Atlantic explained. "The GOP lawmakers are now challenging that ruling before the Supreme Court, arguing that, under the independent state legislature theory, the state court lacked the authority to involve itself in the legislature’s work."

The Supreme Court's intervention in the 2000 Florida recount has resurfaced in this argument, in part because former Chief Justice William Rehnquist wrote in his concurrence for Bush v. Gore that the Constitution's “legislature thereof” language could allow Florida courts to interpret the state’s own election law: “The text of the election law itself” as written by the state legislature, Rehnquist wrote, “and not just its interpretation by the courts of the States, takes on independent significance.”

Law school professors Leah Litman and Kate Shaw, however, have written a reply brief to the North Carolina legislators arguing that using this approach would rewrite the electoral process entirely.

Furthermore, argues election law expert Rick Hasen “a muscular reading of the independent state legislature theory would provide a fig leaf for state legislators to try to reverse presidential election results and overturn the will of the people in a presidential election.”

Speaking about it to The Atlantic, Hasan was hopeful that the judiciary would know better than to step into something like this. Still, there's a fear that the Supreme Court might “conclude it is a political question the courts can stay out of."

Hasen’s letter to the court joined with longtime Republican elections lawyer Benjamin Ginsberg and a group of conservative lawyers led by former Judge Thomas Griffith warning that a flood of lawsuits challenging elections would follow. That could, in turn, fuel false claims of election fraud or a leader's claims that any election they lose is "rigged."

Ginsberg was particularly dire in his warning about what such a change would mean, and he argues that “the credibility of the electoral system” will be a “guaranteed casualty.”

Read the full report at The Atlantic.