Moore v. Harper: the case on ISL theory that could overturn “democracy”?

OK, get ready for Moore v. Harper.  And “Harper” is not the baseball slugger surrendered by the Washington Nationals to the Philadelphia Phillies.

Here is the link for the Supreme Court docket.    The case arises from a redistricting issue in North Carolina.    

It is well to list all the major controversial cases which come up in 2022-2023, as from Axios (written up by Arianna Gonzalez) at this link.    

The basic issue seems to be this.  There is a doctrine called “Independent State Legislature” theory, (ISL). That would maintain that a state legislature alone, even without any supervision of the state’s courts, have a freehand in making all election policy for the state, most specifically for redistricting or gerrymandering, but also in the conduct of elections in general (like absentee voting and the like) as became “controversial” in 2020.  A good legal writeup exists on a site called Verdict, by Vikram David Amar (read both parts).  

Most of this has to do with the early articles of the Constitution using the word “legislature” by itself referring to state’s actions with respect to various powers including running elections.  A strictly textualist (not even originalist) interpretation might mean that state courts cannot intervene.  However, a more reasonable (even originalist) idea is that a state, as a semi-autonomous entity, must have a court system in place to enforce its own police powers and guarantee “rule of law” (and even equal protection).  Therefore it makes no sense to say that state courts could have no say in election-related matters.

A secondary risk could exist.  Under the most extreme interpretations, a state legislature could overturn the popular vote for electors for that state (by refusing to certify the result) and simply choose the electors of the party it wanted.  In fact, if you read Article 2, nowhere does it say that a state must have a popular election for presidential electors. We thought they all wanted to!

A twitter user,  who says he is 82 and progressive, offered the 31-part thread scenario as to how the United States could wind up a Putin-style dictatorship after the 2024 election.    

I then looked up some mainstream analysis of the ISL problem.  The two most important seem to be these:

On June 30, an analysis in the New York Times by Adam Liptak and Nick Corasanti, link (paywall).  

On June 30, Hansi Lo Wang offers a similar analysis for NPR, link. 

I also wanted to mention, the Texas attorney general has already signaled that he wants to challenge the overturning of the Texas sodomy law (21.06) next term, following Clarence Thomas’s invite, or at least will do so if the court rules his way next year (Washington Post story by Timothy Bella, June 29, paywall). The AG asserts he must enforce “state laws”.  Presumably he would need to get a conviction, very difficult under normal law enforcement except as an add-on to another offense.  The conviction would get appealed and might get to SCOTUS which could then revisit the concept of whether “privacy” is a fundamental right, or whether, if not, the state has a rational basis (not strict scrutiny) for the law.  Remember in the Georgia case Hardwick v. Bowers 1986 opinion (which also applied to heterosexuals) where affirming justice Berger wrote angrily “there is no such thing as a fundamental right to homosexual sodomy” – and his concurrence was largely ignored.  Today, the recent public health controversies over “monkeypox” (and the medical facts are still developing) along with lingering speculative theories from the “religious Right” during the 1980s over HIV (the failed “2138” law attempt), could create a rational basis argument if such a case really got heard before SCOTUS.  In New York City, private citizen and data science activist Michael Donnelly has been successfully pressuring the stare and CDC both to get the vaccines out more quickly.  (Donnelly broke the news on the Provincetown breakthrough outbreak of mild cases in vaccinated people in the summer or 2021).  We should note (with historical irony) that the male gay community as a whole had much less COVID than the public as a whole, partly because of solitary lifestyles, education levels, high vaccination rates, and possibly even the idea that some medications taken in the community may actually have (unproven) effects against the virus, a possibility worth exploring more seriously.