Whew!

Image of a killer asteroid approaching Earth courtesy of News.com.au

In the summer of 2022, when the Supreme Court announced that it would hear a case called Moore v. Harper, my stomach dropped. It was as if they had just declared that a huge asteroid was heading our way, and there was a 50 percent chance of a direct hit that would destroy our democracy.

That’s because Moore took aim at the very heart of our federal system, and at least four justices had just invited the petitioners to come make their best case. This was not because there was any split decisions in the courts, but rather because four members of the High Court had decided it was possibly time to let all hell break loose.

The danger of Moore was this: It raised a truly crazy argument called the “Independent State Legislature” (ISL) theory which went über literal on the text of our Constitution to produce a patently absurd result. ISL theory lay at the heart of the effort by wily January 6th lawyers inside the White House to overturn the 2020 presidential election. If the Court were to accept it, it would go a long way toward exonerating the actions of those conspirators and set us up for electoral chaos in 2024 in key battleground states.

On Tuesday, when the Court informed the public that Moore was the third decision to be announced, I started hitting refresh on my SCOTUS news feed. Then the opinion dropped, and as I skimmed down to the holding, I felt myself exhale, close my eyes and thank the gods of jurisprudence. The Court had ruled 6-3 against ISL. Democracy would not be felled in America by this particular strike from out of the blue.

Now that I’ve spoiled the ending, let’s examine the fragments that broke up in our legal atmosphere and see what we can learn from this harrowing near miss. Specifically, what is ISL theory and why was it so damned dangerous; how did the Supreme Court find itself faced with the question; and what does it mean for our system now that it has been rejected? Here we go.

ISL theory: a MAGA space fantasy

I want you to read something and tell me if you spot the problem. This is the “Elections Clause” of the U.S. Constitution, and while it isn’t the most carefully worded thing, it is the reason we legal observers were all hyperventilating on Tuesday about the fate of our democracy:

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.

Nothing weird, right? Let’s look more closely. The clause talks about how federal elections for Senators and Representatives are to take place in each “State,” with the time, place and manner for holding them prescribed by the “Legislature.” So, what’s the big deal?

Unhappy with the way elections have been going for them lately, far-right legal activists have decided to try and stretch that language to mean something pretty insane: That because the Elections Clause specifically uses the word “Legislature” rather than “State,” somehow the state legislatures are permitted to act on their own when it comes to federal elections, without any oversight by other branches of state government like the governor or the courts.

Taken to its extreme, this would mean the entirety of federal elections within a state are to be handled only by the state legislature. If that body wanted, for example, to draw Congressional district lines in a highly gerrymandered way, it could do so without regard to what the state constitution or the state Supreme Court said about it, because under the Elections Clause as bizarrely interpreted by ISL theory, only the legislatures have any power or authority over federal elections within the state.

This would also mean that if an election for president were held and the state legislature wanted to challenge the allocation of the state’s electoral college votes, it could do so unilaterally, bypassing the governor and the courts to send a different slate of electors to D.C. If that sounds eerily familiar, this is in fact what Trump advisor and possibly soon-to-be-disbarred-lawyer John Eastman was advocating in his infamous coup memos, and what lay at the heart of efforts to urge Mike Pence to “send the votes back” to the states for reconsideration by the legislatures.

Having lost the popular vote for president in the battleground states of Pennsylvania, Michigan, Wisconsin, Georgia and Arizona, the coup plotters hoped to use ISL theory to empower the legislatures in these states to undo the popular vote and produce a different result.

In no other circumstance does a state legislature even conceivably get to act without possible review by the state courts, and without regard to state law or the state constitution. That’s why ISL theory shouldn’t have even seen the light of day with the Supreme Court. And yet, at least four of the justices seemed amenable to it, leading many to wonder if the Court had grown so partisan that it was willing to shred the very fundamentals of our federal system to ensure the GOP held onto power.

The Moore case

The way ISL theory made its way to the Supreme Court is a bit complicated, but here is the CliffsNotes version. 

The North Carolina legislature had redrawn Congressional district maps after the census, but to no one’s surprise they deployed an extreme partisan gerrymander, skewing the state’s Congressional representation to a 10-4 split favoring the Republicans—in a state that often elects Democratic statewide officers. Voting rights groups sued, and the state Supreme Court, which at the time held a liberal majority, ruled that the maps were an impermissible gerrymander under the state’s constitution. It ordered new maps, and that moved the split to the current 7-7 even one.

Two GOP state legislators were very unhappy about this. They appealed that decision up to the U.S. Supreme Court, on grounds that, under ISL theory, the state Supreme Court lacked legal authority to rule on the maps at all.

And then the Supreme Court granted review.

That was the gulp moment. 

Something then happened to shake things up. In the midterms of 2022, voters in North Carolina replaced enough justices on the state’s high court to give the conservatives a majority. Then in a brazen disregard for established precedent, the new court agreed to rehear the case about the partisan gerrymander, even though there were no new facts and no new laws, just a new court.

This was terrible news for democracy in North Carolina (and for the Democrats’ prospects for retaking the House in 2024) because redrawn lines could shift three House seats from the Democrats to the Republicans. But it did have the effect of possibly mooting the appeal to the Supreme Court. 

Specifically, now that the case was going to be reheard by the North Carolina state Supreme Court, whose original decision had been the basis of the appeal, SCOTUS could simply dispose of the matter because procedurally there was no longer any necessity to hear the case.

Or…it could decide to retain jurisdiction over the case and still rule on the validity of the ISL theory, now that it had the question before it. And that is what the majority of justices decided to do.

The Roberts majority

This is the “good news” part of this summary. In a resounding rejection of ISL theory, Chief Justice Roberts wrote for a six justice majority that “the Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.” By “ordinary exercise” he means what we all have come to know and expect: that state courts still get to act as a “check” upon state legislatures. If the legislatures overreach under state law, it is the courts that knock them back, even on questions of federal elections.

Roberts also restated an important principle: “when legislatures make laws, they are bound by the provisions of the very documents that give them life.” In his view, shared by the majority, state legislatures “are the mere creatures of the State Constitutions, and cannot be greater than their creators.”

I love that framing.

Three were three dissenters, but really only two that count. The one that doesn’t was Justice Alito, who definitely never drank a $1,000 bottle of wine provided by a billionaire buddy whose gifts he never disclosed. Alito dissented on grounds that the case was now moot and the Court shouldn’t have decided anything about ISL theory. Justice Thomas, not at all writing on behalf of his own billionaire buddies, also said the case was moot but apparently also just really digs ISL theory in general, which is also a favorite talking point of his wife, Ginni. Justice Gorsuch joined the Thomases in wanting that asteroid to hit us.

So what does this mean going forward?

The case will already impact dozens of cases now pending in the courts where ISL has been raised as a killer meteor argument. That threat is now gone. 

My own eyes are on the new Wisconsin Supreme Court liberal majority, which now has the chance to rule whether the state legislature’s extreme partisan gerrymander runs afoul of state law. If they order the maps redrawn fairly, that could offset what the new North Carolina maps will likely do: Currently, Wisconsin’s Congressional delegation has six Republicans and two Democrats, in a state that votes consistently statewide for Democratic leaders. Fairer maps could shift two seats toward the Democrats.

It also means that likely Trump attorney defendants such as John Eastman and Kenneth Chesbro will not be able to point to ISL as a solid legal defense for their actions, though the Thomas/Gorsuch dissent may give them some cover to argue that they had made their coup plans based upon a good faith interpretation of the Constitution. (“See? Even Justice Thomas thinks it was okay!”)

And importantly, Donald Trump, assuming he is the GOP’s presidential nominee even if he ends up campaigning with an ankle bracelet on, will have no power to ask GOP-controlled state legislatures to undo the will of the voters. 

That means the GOP will have to try and win the election in 2024 fairly and squarely by actually winning the most number of votes, especially in key battleground states. In short, the official popular vote tallies will have to be honored, and not circumvented or overruled by MAGA state legislators.

Wow, what a concept.

Finally, it bears noting that this is the second surprising decision in recent weeks by Chief Justice Roberts in service of preserving our democracy, the other being his ruling upholding Section 2 of the Voting Rights Act. While this in no way absolves him of the terrible damage occasioned by his past rulings, at the very least the Chief Justice is back in the driver’s seat when it comes to not allowing wayward asteroids to wipe out our democracy. 

I can’t help but wonder if this is Roberts’s own way of sticking it to the far-right justices who have brought so much shame and dishonor to the Court under his watch.