Moore v. Harper: Voting & Democracy at Stake Pending Upcoming SCOTUS Case

ISL would take away power of “We the People”

Independent State Legislature (ISL) theory

Update of the following post from NEWSWEEK presented by legal scholar Laurence Tribe with this headline: “Clarence Thomas Might Have Just Broken the Law in the Supreme Court.”

Thomas may have broken the law by refusing to recuse himself from a high-profile Supreme Court case Tribe told Lawrence O'Donnell on MSNBC. 

He said Thomas may have violated 28 U.S. Code § 455 because he has not disqualified himself in Moore v. Harper, a controversial case about the power to draw and strike down electoral maps. The statute cited by Tribe deals with federal judges disqualifying themselves from cases and he argued that Thomas was in violation of the law because of “Two provisions that almost any lawyer would say require Clarence Thomas not to participate at all. One of them says that a justice — and it specifically applies to Supreme Court justices — may not participate if somebody could reasonably question that justice's impartiality. Clearly that's the case here.”

Insert note: The section of that law says a Justice shouldn't be involved if their spouse has an interest in the case and Tribe continued: “It's obvious that Ginni Thomas has an interest. She was an active participant in the attempt to use something like the independent state legislature theory that was before the court on the argument on Wednesday and Clarence Thomas happily participated anyway.”

Tribe continued: “The outcome of the case could have a profound effect on U.S. elections, with the Brennan Center for Justice previously calling Moore v. Harper: An appeal advocating for extreme interpretation of the Constitution that could make it easier for state legislatures to suppress the vote, draw unfair election districts, and enable partisan interference in ballot counting.” 

My 2 Cents: Had this scheme been in effect in 2020, Trump would still be in power. This court must deny case for the nation’s sake NOT partisanship of any kind. 

Original post follows:  

One very critical voting rights case will be heard by the Supreme Court case on December 7 (Pearl Harbor historical date. Ironic that the case will heard on that date and I hope they don’t attack that precedent case – same subject heard years ago and toss it like they did when they overturned Roe v. Wade months ago).

The main story headline is from U.S. News & World Report:

“Supreme Court Schedules Major Cases for December Arguments”

Before proceeding watch this 1:52 video in simple term explaining the #1 court case pending: Moore v. Harper and case title: “Independent State Legislature (ISL)” theory – watch here:

 

Then, check out these two sources on this same topic:

The first is some excellent historical background from TIME here.

The second is case history from the voting experts at the Brennan Center for Justice at NYU – they are truly the best site for voting issues.

Both lay the foundation for this the main post today – enjoy.

The Supreme Court released its December argument calendar, featuring two highly anticipated cases that could reshape facets of American life – one on election law and another on LGBTQ protections.

The Election Law Case: Arguments in the case of Moore v. Harper (review here at SCOTUS Blog) are set for December 7, and could have massive implications for American elections by giving state legislators unilateral power to set voting rules.

(Note: I also posted here in July about a similar case in Ohio).

This case arose from a North Carolina dispute over the drawing of congressional maps, hinges on an idea known as the “Independent State Legislature (ISL)” theory, which effectively asserts that state legislatures should be the final word on rules for federal elections, leaving out state courts.

The NC State Supreme Court turned down a new congressional map at the request of a group of Democratic voters who argued that it was a partisan gerrymandering. 

The Republican state lawmakers then went to the U.S. Supreme Court on an emergency basis, arguing that the court violated the elections clause of the U.S. Constitution, which says that: “The times, places and manner of holding elections should be determined by the state legislatures.” 

Conservative Justice Samuel Alito wrote in a dissenting opinion joined by Justices Clarence Thomas and Neil Gorsuch when the high court rejected a request to grant an emergency stay of the lower-court order that the case represented: “An exceptionally important and recurring question of constitutional law.”

Alito further wrote: “If the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections. I think it is likely that the applicants would succeed in showing that the North Carolina Supreme Court exceeded those limits.”

Some have argued that granting state legislatures sole power to determine election rules runs the risk of allowing states to disregard their popular vote and appoint their own electors in an attempt to overturn election results. 

Others say it would not go that far and attempts would ultimately be quashed by federal powers, while state legislatures could make smaller – yet consequential – decisions related to voting. 

Notably, John Eastman, an attorney who worked with Trump in his effort to overturn the 2020 election, filed a brief asking the high court to embrace the legal theory (with their fake elector list to replace the official list state and voter approved).

My 2 Cents: Ruling that allows the “Independent State Legislature (ISL)” theory to become law threatens the entire electoral process. 

Overall our elections are supposed to be and usually are free, fair, safe, and secure, but when a one-party controlled legislature does not like the outcome, and they can rule against that outcome and the courts can't do anything about it, well then bye bye, American pie.

It would be more than just the Trump, Eastman, Clarke, and others who wanted the real EC voter list to be replaced by a list of “fake electors” thus ensuring that your vote will not count, and only the counters decide the legal vote regardless of the actual outcome, thus further ensuring that their side never loses again.

It’s a complex topic on the surface with lots of legal jockeying and mumbo jumbo lingo, but the bottom line is clear: GOP-run states would never lose again no matter the real vote outcome and that would be so if this Supreme Court approves this ISL theory. I am not a lawyer, but I know and have read enough about this to firmly believe it must never become the law of the land. 

So, in summary and for the sake of our democracy, this court should rule 9-0 against this insane scheme once and for all. I hope you agree after reading the above, and after researching for yourself.

As always, thanks for stopping by.