Supreme Court case to test the limits of election denial

The case of Moore v. Harper, set to be argued Wednesday before the U.S. Supreme Court, has been said to have the potential to end democracy as we know it.

That’s wrong, legal scholars say. But there is some debate over how to talk about this case, since bad actors in a state legislature could try to overturn election results even if the law clearly says they cannot.

The case in question, revolving around a dispute in North Carolina between the Republican-controlled state Legislature and the state Supreme Court, deals with drawing boundaries for congressional districts.

But the legal dispute that has arisen from this case is whether state legislatures can do anything they want when it comes to elections, or whether state constitutions can constrain them. If, some have argued, the Supreme Court’s conservative majority rules that state legislatures can do anything under what has become known as the independent state legislature theory, or ISLT, they could throw out election results they don’t like and install their preferred candidate after voters have already cast ballots.

This was something that a few Republican election deniers tried to do in 2020, and democracy advocates worry that that failed attempt is now seen as a test run. Former President Donald Trump's lawyers, as part of their effort to overturn his loss to Joe Biden, also argued that state legislatures could throw out election results they didn't like and impose a president of their choice on voters.

But hold on, legal experts have said for months. The Constitution clearly forbids state legislatures to do this, they say, and there’s no real disagreement over this point. So people should stop arguing that this case could give rogue state legislatures authority they don’t have now and won’t have in the future, regardless of how the Supreme Court rules in Moore v. Harper.

"The baseless speculation that it would empower Trumpian state legislatures to execute a legal coup in 2024 by ignoring the results of the popular vote is worse than wrong. It's dangerous," wrote Matthew Seligman, a fellow at Stanford Law School's Constitutional Law Center who is an expert on disputed elections. "While sowing the seeds of panic about a conservative Supreme Court might make for good politics, it actually makes a constitutional crisis more likely in 2024."

Seligman noted that even former Secretary of State Hillary Clinton, the Democratic Party's nominee for president in 2016, raised money for a Democratic group by warning that "the right-wing Supreme Court may be poised to rule on giving state legislatures … the power to overturn presidential elections."

"These claims are unequivocally false," Seligman wrote. His view has been echoed by many other legal scholars.

Furthermore, the real threats from state legislatures acting undemocratically would come before Election Day. "State legislatures might enact laws before election day that permit them after the election to alter or influence the outcome of the election-day popular vote," wrote Bob Bauer and Jack Goldsmith, two formidable constitutional law experts with extensive experience in government.

But that threat will be neutered if Congress enacts reforms to the Electoral Count Act of 1876, which it is expected to do this month. Senators who have worked on ECA reform all year have said they plan to pass it and have the votes to do so.

And so, Seligman wrote in Politico, “liberals (and really anyone who believes in democracy and the rule of law) may come to regret their overheated rhetoric in 2022.”

"The battle for the minds of Americans who don't know the details of arcane constitutional doctrine will be much harder to win if those who attempt to overturn the 2024 election can point to their political opponents' uninformed hyperventilating from just two years prior and say: See, you already said we have this power," Seligman wrote. "Those who believe in the rule of law have a grave responsibility to know what the law actually says. They should start living up to that responsibility."

But some legal scholars have said there is reason to be concerned that the Supreme Court could rule in favor of a very broad authority for state legislatures. If that happens, bad actors after the 2024 election could use that ruling as a "fig leaf … to try to reverse presidential election results and overturn the will of the people in a presidential election," said Rick Hasen, director of the Safeguarding Democracy Project at UCLA.

Quinta Jurecic, a Brookings Institution fellow and senior editor at Lawfare, noted that "any state-level effort to upend the 2024 presidential election on the basis of an exaggerated interpretation of the independent state legislature theory would depend, in part, on the fact that the theory is difficult for laypeople to understand — and therefore open to distortion."

Vicki Hausman, co-founder of Forward Majority, a group that has poured millions into helping Democrats gain back seats in state legislatures, did not back off the group’s warnings about the potential outcome of the Moore case.

"Anyone who thinks this is an overreaction has clearly forgotten what took place following the 2020 election,” Hausman said in a statement. “That’s why Democrats’ wins in state legislatures, especially in states such as Michigan and Pennsylvania, in November were key in building a bulwark against the worst threats of the ISLT.”

Seligman noted to Yahoo News that he doesn't mind if people warn that a state legislature may try to overturn results after the 2024 election, as long as they clearly state that the U.S. Constitution forbids it to do so.

“We shouldn’t give (legally inaccurate) cover for rogue state legislatures making the attempt in 2024,” Seligman said. “Imagine if Barack Obama had said in 2018, ‘We should be very afraid because Mike Pence has the constitutional authority to unilaterally reject electoral votes.’ And then Trump pointed to that in December of 2020. I think that would have made things way worse.”