Though it was somewhat expected, a shudder of terror went through everyone who is pro-democracy upon hearing the SCOTUS announce yesterday that it would accept Moore v. Harper, with nothing less than the future of voting rights at stake. Over the next year, until the case is decided, Americans are going to learn that there is actually no right to vote in the Constitution. The only guarantee is that when there is a vote, you cannot exclude people over 18, exclude people due to race, or exclude women. There is no general Constitutional right to vote and, there is a radical “Independent Legislature doctrine” popular in ultra-conservative circles that aims to take care of the pesky presidential vote problem. In short, in 2023, the Court may leave how states cast their electoral college votes entirely up to the legislature under the 12th Amendment. As many have said, 2020 was a practice run. In 2024, it may be law, the fake electors will be official and the vote won’t matter:
At issue is the “independent state legislature theory” (ISLT), which the Brennan Center for Justice describes as a “baseless” concept “making the rounds in conservative legal circles” that posits congressional elections can only be regulated by a state’s lawmakers, not its judiciary—or even its constitution.
Prominent purveyors of former President Donald Trump’s “Big Lie” that the 2020 presidential election was “stolen”—most notably, Ginni Thomas, a right-wing activist and wife of Justice Clarence Thomas—have invoked the dubious theory when pushing state lawmakers to help overturn President Joe Biden’s Electoral College victory.
Even beyond allowing for horrific gerrymandering outside the reach of any court, the case allows the SCOTUS to rule upon whether citizens even get to vote for president directly. According to the Brennan Center, it all flows out of a terribly written clause in the 12th Amendment:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
The dispute hinges on how to understand the word “legislature.” The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.
Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.
The United States is already an unbelievably weak democracy, designed that way from the beginning to give small states outsized power, which is only made worse today by the filibuster in the Senate and the Electoral College. But we haven’t seen anything yet if the SCOTUS sets loose these state legislatures to do “whatever they want” when it comes to federal elections, 2020 will look like the good old days.
Four justices wanted to hear this case. This is an incredibly popular theory in the MAGA circles of government and the people that brought you Justice Kavanaugh, Gorsuch, Alito, and the like, the type that overrules Roe. They will have no problem putting presidential voting in the laps of state legislatures, and whoever holds the state legislature at the time of the ruling, will likely never lose it, given the aberrant reading. It is literally a means to the end of democracy and we’ve seen this coming like a freight train for years.
Jason Miciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, while also studying scientific philosophy, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.
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