Since January 6 a new Supreme Court case has posed the greatest threat to US democracy.


Anyone concerned about democracy should be alarmed by the Supreme Court announcement on Thursday that it will hear Moore v. Harper, a case that could concentrate an unprecedented amount of power in gerrymandered state legislatures.

Supreme Court case has posed the greatest threat to US democracy - Freedom News

The case is possibly the most serious threat to American democracy since the January 6th attack. It seeks to reinstate gerrymandered congressional maps that were overturned by North Carolina’s highest court for “submitting traditional neutral redistricting criteria in favour of extreme partisan advantage” for the Republican Party.

The plaintiffs contend that the state supreme court lacked the authority to overturn the maps, and they base their claim on legal arguments that would fundamentally alter how congressional and presidential elections are conducted.

Moore involves the “independent state legislature doctrine,” a theory that the Supreme Court has rejected numerous times over the course of more than a century — but that gained traction after Republican appointees gained a supermajority on the Court at the end of Trump’s presidency.

Under the strictest interpretation of this doctrine, all state constitutional provisions that limit state legislators’ ability to skew federal elections would be rendered ineffective. State courts would lose the ability to overturn anti-democratic state laws, such as gerrymandering that violates the state constitution or laws that throw out ballots for arbitrary reasons. State governors, who normally have the authority to veto new state election laws, would lose that authority.

The Constitution, as described by Justice Neil Gorsuch in a 2020 concurring opinion in a case involving the deadline for casting mail-in ballots in Wisconsin, provides that state legislatures — not federal judges, state judges, state governors, or other state officials — bear primary responsibility for setting election rules.
Four justices, including Gorsuch, Clarence Thomas, Samuel Alito, and Brett Kavanaugh, have all supported some form of this independent state legislature doctrine. Meanwhile, four other justices, three liberals and Chief Justice John Roberts, have indicated that they will not overturn the Court’s numerous precedents rejecting this doctrine.

The fate of American democracy is almost certainly in the hands of Justice Amy Coney Barrett, a Trump appointee who typically votes with Republicans in election cases.

However, it is unclear whether this Supreme Court would apply the most extreme version of this doctrine — with a strict rule that a state supreme court can never overturn a state election law or that a state governor can never veto an election bill.

Although a majority of the Court voted to dismiss the case — with Kavanaugh explaining that he did so because the case arrived at the wrong time — Alito wrote a dissenting opinion saying that he would have immediately reinstated North Carolina’s gerrymandered maps. His opinion also suggests that he wants to give himself and his fellow justices as much leeway as possible in overturning state court decisions that he disagrees with.

So, under Alito’s approach, pro-democracy state constitutional provisions would only cease to function if Alito and four of his Republican colleagues wished to suspend them.

Needless to say, the stakes in Moore are extremely high. The Supreme Court’s decision in Moore could undermine many states’ efforts to combat partisan gerrymandering. And in key swing states like Michigan, Pennsylvania, and Wisconsin, where Republicans control the state legislature and Democrats control the governor’s mansion, the state supreme court, or both, Moore could give the Republican Party complete control over how federal elections are conducted.

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