On July 4, 2022, the day that the Continental Congress official accepted the Declaration of Independence, the Supreme Court is considering more steps from democracy to authoritarianism by hearing Moore v. Harper. Justice Clarence Thomas has threatened to remove constitutional rights, but the slate for next year could completely devastate the democracy if the six Supremes give permanent power for setting election rules to state legislatures even if laws violate state constitutions. The court already permits North Carolina’s gerrymandering for 2022 by postponing a decision; Moore argues for the permanence of maps struck down by the state Supreme Court in a finding that the maps favored “extreme partisan advantage” for the Republican Party. The GOP claims that the U.S. constitution prevents state courts from striking down anti-democratic state laws such as gerrymandering and laws eliminating ballots for arbitrary reasons. Republicans want to remove any governor’s ability to veto new state election laws.
Justice Neil Gorsuch already supported the GOP viewpoint in a concurring 2020 vote about the Wisconsin deadline for casting mail-in ballots by stating that “state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.” Samuel Alito and Brett Kavanaugh support Gorsuch and Thomas in this position, overruling the Court’s multiple precedents rejecting this “independent state legislature doctrine.” Amy Coney Barrett, who votes Republican, is left to split the vote.
When the Moore case appeared last March on the high court’s “shadow docket,” the majority temporarily turned it away with Kavanaugh explaining the case arrived at the wrong time. Alito’s dissent stated he would immediately reinstate North Carolina’s gerrymandered maps and overrule state court decisions he didn’t like. A ruling for the GOP in Moore would give them complete control of how federal elections are conducted in states with GOP legislatures.
In Davis v. Hildebrant (1916), the Supreme Court rejected this theory by upholding a state constitution provision allowing voters to veto state election laws through a popular referendum. Davis defined “legislature,” per the U.S. Constitution’s relevant provisions, as any individual or body possessing some part of power to make laws within a state—the “legislative power.” Therefore, under Ohio’s constitution, “the referendum was treated as part of the legislative power” and thus “should be held and treated to be the state legislative power for the purpose of creating congressional districts by law.” Legal scholars and brothers Vikram David Amar and Akhil Reed Amar supported this position by writing, “state people and state constitutions are masters of state legislatures,” not the other way around.
States can determine, through its constitution, who belong to the “legislative power,” according to Supreme Court precedent. It can give power to the governor, the state courts, a redistricting commission, or the people themselves through referenda and ballot initiatives. Most state governments function this way. Like the federal constitution, state constitutions usually permit the chief executive to veto law, even election law, and give state courts the power to resolve conflicts arising from interpretation of the constitution and existing laws.
Davis has been upheld multiple times since 2016, most recently in 2015 when the high court upheld the right of Arizona’s bipartisan commission to draw congressional maps in Arizona State Legislature v. Arizona Independent Redistricting Commission. According to the ruling, “Our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.” Three of the four dissenting justices—Chief Justice John Roberts, Samuel Alito, and Thomas—still sit on the court. Neil Gorsuch indicates he will join their overturn of election precedence.
Moore is a strange case to use in arguing for “the independent state legislature doctrine”: although North Carolina is trying to overturn the court’s authority, its legislature specifically authorized the state courts to hear the case. North Carolina law provides that lawsuits challenging “any act of the General Assembly that apportions or redistricts State legislative or congressional districts” may be filed “in the Superior Court of Wake County and shall be heard and determined by a three‑judge panel.” This court’s decision may then be appealed to the state supreme court, and the law delineates the specific process to be followed in the courts. With no legitimate legal conflict, the Supreme Court accepted the case for Republicans to overturn its own legislative mandate to put only the legislature into complete control.
The Supreme Court may have taken the case because a majority of justices already intend to roll back all the precedents for over a past century.
Another clause of the U.S. Constitution states that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Dictator Donald Trump (DDT) and his supporters used this clause in their effort to keep him in the Oval Office: according to them, GOP state legislatures could ignore the popular vote and send electors to vote the way that the GOP legislatures wish. Five Supreme Court justices could take all the power from secretaries of state and elections commissions. The GOP controls 30 state legislatures, enough to elect Republicans in perpetuity. John Eastman, a leader in persuading state legislatures to negate the popular vote, was a law clerk for conservative judge J. Michael Luttig. In an op-ed, Luttig described the GOP “blueprint” for stealing the 2024 election. He wrote:
“Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”
More details on the independent state legislature doctrine and why Moore can be the end of U.S. democracy.
Ruth-Ghiat, scholar of authoritarianism, finds a relationship between the Supreme Court’s radical decisions and the January 6 insurrections. Thomas has gone even further right in his recommendations for future decisions to do away with federal LGBTQ rights, the ability to have contraception, and freedoms of the press and religion. In reference to the last one, she tweeted:
“Self-protection (and protection for corrupt family members) is a huge driver of authoritarian behaviors. He feels threatened and will try and change the legal order to avoid scrutiny. Radicalized people no longer care about ‘how it looks’ to outsiders.”
Ben-Ghiat noted that Thomas’ interest in overturning New York Times v. Sullivan (1964), protecting freedom of the press, came after the House January 6 investigative committee asked his wife, Ginni Thomas, to testify regarding her role in the coup attempt and her potential conflicts of interest. He is also politicizing the Supreme Court. “Politization of institutions is a major warning sign of creeping authoritarianism,” according to Ben-Ghiat. She continued:
“Societies around the world have gone through the same cycles of disbelief, agitation, anger and fear as things worsen. Since the loss of freedoms looks different in every place and time, we can have trouble acting preventively.”
In October 2017, Ben-Ghiat wrote:
“Authoritarianism is not something presented to us as a fait accompli, but something we help along, step by step, by acquiescing to changes in political climates that start with pronouncements by the leader and slowly move the boundaries of what is possible.”
DDT pushed hard for Thomas’s ideas to remove Supreme Court precedents. He follows the practice of “floating extreme ideas so that they enter the mainstream” as a joke or just “an off-the-cuff remark” so that he can take it back or accuse others of mishearing or misrepresenting him if he wants. He has frequently called the press “the enemy of the people” to pass controls on it, violating the Constitution’s First Amendment. He “joked” about VP Mike Pence’s wanting to “hang gays,” leading to a movement criminalizing LGBTQ people and their rights. Two days after DDT’s “joke,” anti-LGBTQ posters with bodies hanging from a noose appeared on college campuses and in social media.
In January 2016, DDT said he could shoot someone in the middle of Fifth Avenue and not lose followers, and the crowd cheered. The media treated his comment as “just being Trump,” but DDT discovered he could violate civilized norms with impunity. Becoming the GOP candidate convinced him he was above the law. Republicans typically use fear to recruit members to their political party; they promise to exercise law and order and then exacerbate situations to increase crime. The GOP demoralizes people through political and social polarization while promising to fix the problem.
Moore is a continuing departure from democracy to authoritarianism by shredding of voting rights. Hearing the case rejects a five-justice decision three years ago in Rucho v. Common Cause which blocks federal courts from addressing whether extreme partisan gerrymandering violates the Constitution and claiming state courts can handle any violations of a state constitution. Nine years ago, the Supreme Court removed part of the Voting Rights Act (VRA) intended to protect Black voters. A year ago, the court further weakened the VRA by creating greater difficulties in challenging voter regulations disproportionately burdening minority voters.
The justices supporting the “independent state legislature theory” (ISLT) cite history, but this “theory” has no historical basis and no supporting scholarship. If a majority of the high court votes in favor of the case, the chaotic system will result in states not being able to reliably hold unified elections for state and federal offices. Gone will be state constitutional provisions guaranteeing “free,” “free and equal,” or “free and open” elections for federal positions.