Carole Levine November 29, 2022
Georgia may have provided us with a prelude to what elections could be like if the Supreme Court decides that to uphold the “independent state legislature theory” as Constitutional, giving election control to state legislatures and undermining state courts’ ability to intervene in voting rights cases. The case, to be heard on December 7th, is Moore v. Harper and it deserves our attention as it could shift the outcome of elections, from the people who vote, to the people who control the state legislature.
In looking at what is happening in Georgia and its voting process and newly minted voting laws, some red flags are raised and they all point to the Supreme Court case that will be heard the day after the Georgia runoff. In that case, Moore v. Harper, [1] the Supreme Court will consider the “Independent State Legislature Theory” and could enshrine state legislature’s control over elections, not just setting election law (as they did in Georgia, which led to great confusion and the need for court intervention), but in controlling federal elections and federal (and possibly state) election outcomes. It is quite scary to write this and even more scary to envision what elections might be like if the Court decides that this antique theory is actually Constitutional. Here’s some background on this theory:
Moore v. Harper is a North Carolina gerrymandering case. This is a perfect fit for the independent state legislature theory as it is a reading of the Constitution that would give state legislatures wide authority to gerrymander electoral maps and pass voter suppression laws according to the Brennan Center for Justice. It has been used as political cover to attempt to overturn elections as well.
While the Constitution delegates power to the states to administer federal elections, it is not always clear just how much power or just where in the state that power resides. There are two clauses in this dispute. The Elections Clause that states: “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.” and the other is the Presidential Electors Clause that states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” The dispute hangs on the term “legislature.” Up to this point, almost all readings of this, including those of the Supreme Court, have been subject to a state’s normal procedures and limitations. If a law is blocked by a governor’s veto or a citizen referendum, according to a state’s constitution, election laws can be blocked in the same way. And state courts must ensure that laws for federal elections, as with all laws, comply with their state constitutions.
But, according to the Brennan Center, 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. What results? When it comes to federal elections, legislators would be free to violate their state’s constitution and state courts couldn’t stop them. This would also leave elected officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections without any power and at the behest of the state legislature.
The current Supreme Court has three justices who are known to support the independent state legislative theory – Justices Thomas, Alito and Gorsuch. Where the others sit on this remains to be seen, but a ruling that upholds this theory could wreak havoc with elections across the nation. The question of “Will my vote count?” would echo in many states and issues of voter suppression could play out just by who state legislators “appointed” to be their presidential electors. And, according to former federal judge J. Michael Luttig — a distinguished conservative jurist — the theory is a part of the “Republican blueprint to steal the 2024 election.”
Early voting is underway in the Georgia Senatorial runoff election between Democrat Raphael Warnock and Republican Hershel Walker. It began in some Georgia counties on Saturday, November 26th, but it took court action to make that happen. Why? Because new voting laws, enacted by the Georgia State Legislature in 2021 gave the GOP-dominated state legislature the opportunity to shut down Saturday voting, based on two premises: first, that it was a state holiday – the birthday of General Robert E. Lee; and second, that the law states that you cannot hold elections within two days of a national holiday (in this case Thanksgiving). The response, of course, was a lawsuit.
A judge in Fulton County Georgia upheld the petition for Saturday voting from Senator Warnock, the Georgia Democratic party and the Democratic Senatorial Campaign Committee. State courts turned down appeals from the Republican attorney general and state and national Republican parties.. This allowed the final decision to allow Saturday (and Sunday) voting to be made on a county by county basis. According to the Washington Post, 27 counties opened on Saturday, most of them in the larger metropolitan areas, although there were a few open in rural counties.
The importance of early voting was demonstrated by the turnout at the polls that were open: it was large, with long lines and waits of two hours or more. But those who came to do their voting on Saturday, came with purpose and were willing to wait. They were college students who were worried that their absentee ballots might not arrive in time. They were working folks who worried that they could not get off to meet the weekday 9:00 am – 5:00 pm hours of the polls now required by the new voting law, SB 202. They were people whose homes had been “invaded” by out of town Thanksgiving company and this was a great excuse to get away from them for a while! Whatever the reason, the numbers of voters far exceeded expectations. The Secretary of State’s office reported that at least 70,000 people voted Saturday and even more on Sunday.
Reflecting on interviews with Saturday voters in the Georgia runoff election and their willingness to spend time, sometimes a lot of time, to cast a ballot in this senatorial election, it is gratifying for our democracy. But knowing that it took a court order to allow them to vote on Saturday and that Georgia’s new voting law, SB 202 (The Election Integrity Act) is causing great confusion as to how it interacts with other parts of Georgia’s election code on absentee ballots, early voting, runoffs, and election administration, there is worry about future elections. And that worry could be be compounded by the Supreme Court when it decides Moore v. Harper next spring. There is much to worry about. Moore v. Harper could upend elections as we know them, and destroy our entire system of checks and balances, including our court system, that many of us feel is critical to maintaining our democracy. In an article on the independent state legislature theory in The Atlantic, Republican election lawyer Benjamin Ginsberg wrote, if the Court adopts the North Carolina legislator’s vision of the theory “the credibility of the electoral system” will be a “guaranteed casualty.”
[1] Moore v, Harper will be audio cast live on December 7th at 9:00 am (Central). To listen, go to www.supremecourt.gov and select the link to “Oral Arguments.” You can then listen to a part of history!
