RALEIGH, N.C. — On Jan. 5, 2021, Mike Pence had a decision to make.
Supporters of then-President Donald Trump were gathered in Washington. Many of them — with Trump’s heavy encouragement — were looking to his vice president, Pence, to enact a plan the next day to keep Trump in office despite having lost the election.
One of the last-minute calls from Pence’s inner circle went to Michael Luttig, a former federal appellate judge with a long career at the top echelon of conservative legal circles. Luttig advised that Pence had no legal authority to overturn the results of the election, he recently told a small group of reporters that included The News & Observer.
Pence heeded that advice, even as Trump’s supporters attacked the Capitol and chanted “Hang Mike Pence.” But an upcoming U.S. Supreme Court case out of North Carolina, Luttig continued, could pave the way for state legislatures to act on their own to override future presidential elections results. No vice presidential cooperation, no problem.
“This is the single-most important case on American democracy, and for American democracy, in the nation’s history,” Luttig said.
That’s one of the few things both sides agree on.
“The question presented here goes to the very core of this nation’s democratic republic: what entity has the constitutional authority to set the rules of the road for federal elections, the means we use to exercise self-government,” North Carolina legislators wrote when they first asked the court to take the case.
The U.S. Supreme Court will hear oral arguments in the case, Moore v. Harper, on Wednesday.
It involves an obscure legal theory called the independent state legislature doctrine. Although it’s not a household name, it could lead to massive changes in how American elections work, with a ruling expected next year.
‘License to coup’?
Moore v. Harper began after North Carolina’s Republican-led legislature lost a gerrymandering case earlier this year, at the North Carolina Supreme Court.
GOP leaders appealed to the U.S. Supreme Court, calling the ruling “judicial activism of the most brazen kind.”
A win could have massive implications for redistricting, The News & Observer has reported, as well as for election rules and voting rights in general.
But a less settled question is whether a ruling in favor of North Carolina lawmakers would also provide the power to states around the country to overturn future presidential election results.
If the people of a state vote for a presidential candidate who doesn’t belong to the same political party that controls the state legislature, would courts also be powerless to stop lawmakers from giving their Electoral College votes to their own party’s candidate, instead?
Not everyone agrees that it would — and skeptics include both supporters and opponents of the theory.
“Moore v. Harper is about who has the constitutional authority to draw federal election maps and has nothing to do with presidential electors,” said Lauren Horsch, a spokeswoman for top Republican Sen. Phil Berger.
“This case is extremely dangerous to American democracy, but it would not remove all checks on state legislatures,” Helen White, an attorney for the voting rights group Protect Democracy, told The N&O this summer, when the court first agreed to hear the case. “This would not give anyone ‘license to coup.’”
Luttig, however, said it’s exactly how Trump intended to stay in office despite losing the 2020 election.
And his opinion carries weight. If things had gone differently two decades ago, Luttig would still be preparing for the oral arguments — but in a black robe, as one of the nine justices hearing this case. In 2005 he was one of two finalists President George W. Bush was considering for an open seat on the Supreme Court, according to Jurist, a news site focused on federal courts.
Bush instead picked Samuel Alito, who is still on the court — and is one of the justices who has appeared most receptive to the legislature’s claims, The N&O reported in March.
How far could the court go?
There is fierce disagreement in political and academic circles on how far a win for the legislature might logically be extended.
GOP leaders have told the court it should be a simple and easy question, mostly about who gets to draw the maps for U.S. House of Representatives races.
“The Constitution directs that the manner of federal elections shall ‘be prescribed in each State by the Legislature thereof,’” they wrote to the justices.
Cutting out the courts would be a departure from the normal system of checks and balances. But Republican leaders say it’s what the Founding Fathers intended, even if the system hasn’t worked that way in the past.
“By striking the General Assembly’s congressional map and redrawing their own, with the help of Democrat partisans, the courts have, once again, violated the separation of powers,” state House Speaker Tim Moore, for whom Moore v. Harper is named, said when he first announced that he was taking this case to the Supreme Court. “This effort to circumvent the elected representatives of the people will not stand.”
Federal courts could still rule on a limited number of election law issues, Moore has suggested in legal filings, but for the most part the legislative branch should be left to its own devices when it comes to elections.
Such a proposal “should keep every American up at night,” said former U.S. Attorney General Eric Holder, who served under President Barack Obama, The N&O reported earlier this year.
Republican lawmakers, however, roll their eyes at such comments — and point out that Holder’s group, the National Democratic Redistricting Committee, has been using this case as a subject of numerous fundraising emails.
“The ‘independent state legislature theory’ is a misnomer to scare voters into donating to these extreme partisan causes,” Horsch said. “Moore v. Harper is predicated on who has the constitutional authority to set election policy – seven state Supreme Court justices or 170 state legislators.”
‘Centerpiece’ of Trump’s 2020 attempts?
However, the clause in the Constitution that deals with congressional elections — and which this case is all about — is almost identically worded to the clause in the Constitution that deals with presidential elections.
So critics wonder whether the Supreme Court’s ruling, whatever it is, will also be taken to apply to future presidential elections.
The question has become more salient now that Trump has announced he is running again in 2024.
If the court does rule in favor of the legislature, Luttig said, it would open the doors for controversy in the 2024 presidential election.
The independent state legislature theory “was actually the centerpiece of the effort to overturn the 2020 election,” by trying to pass off fake slates of pro-Trump electors from states that Joe Biden won, Luttig said.
Others say it’s not so simple.
Several election law experts with national profiles, like Rick Pildes and Derek Muller, have written that even if the Supreme Court embraces the most extreme version of what North Carolina lawmakers are asking for, it wouldn’t give state legislators the ability to directly overturn a presidential election.
Pildes, however, has written that with a win, state legislators could feel newly empowered to try more complicated attempts at overturning presidential results in their states. That could include pushing sham audits, he said, “with the legislature then finding that the ‘true’ electors the people supposedly chose were ones the legislature would then certify.”
Rick Hasen, a legal scholar who runs the influential Election Law Blog, wrote on Twitter that state legislators would not have the power to overturn presidential election results, under a true academic reading of the case.
But that might not matter, he said, if enough people in power decide to pretend otherwise.
“I do believe that 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,” he wrote, later adding: “Legislatures could try this and a Republican congress could go along.”
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