This Supreme Court hasn’t exactly been shy about issuing extremely conservative rulings. Even so, one pending case stands out for its combination of dangerous and unhinged. That case is Moore v. Harper, and involves the so-called independent state legislature theory. The bad news is that Wednesday’s oral argument underscored how outrageous the argument for it is. The good (or at least, less-bad) news is that it seems most of the justices want to reject it.
The independent state legislature theory is the product of an opportunistic, hyper-literal interpretation of the U.S. Constitution. According to Article I, section 4 of the U.S. Constitution, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The theory asserts that this means a state legislature can violate its state’s constitution in congressional elections, and that the state’s supreme court may not stand in the way because the legislature must have the final word.
In a second, I’ll tell you why this is unhinged. But first, let me tell you why it’s dangerous. If the state legislature can violate its own state constitution in federal congressional elections, logically it could do the same in a presidential election. Under their bad-faith arguments, a state legislature could overthrow the people’s vote for president — and the state’s supreme court would have no ability to block it. Hence, a rogue state legislature could determine the outcome of a presidential election. Presumably, they are also counting on the U.S. Supreme Court to stand by and let it happen.
