“The Case That Could Blow Up American Election Law”

Tom Wolf and Ethan Herenstein of the Brennan Center in the Atlantic:

Members of the Supreme Court’s conservative supermajority just last week took the next step in a little-noticed, but extremely dangerous, project: attempting to jam into law a radical misinterpretation of the Constitution’s elections and electors clauses, which, if successful, would create electoral chaos across the country. Before next summer, and well in advance of the 2024 presidential election, the Court could strip state courts and state constitutions of their ability to check and balance state legislators when they make laws for federal elections, giving partisan majorities near-total control over how voters cast ballots and how those ballots are counted. And it would make the currentCourt—which already has a horrible track record on voting rights—the ultimate judge of whether the legislatures’ actions are legal.

The notion at the core of their project—the so-called independent-state-legislature theory—is on the fringes of American jurisprudence, so far out there that its few proponents have struggled to dredge up even the barest scraps of case law and history to substantiate it. But its supporters on the Court seem to believe they’ve found a shortcut around all of that with a case named Moore v. Harper, which they’ve just added to the Court’s docket for its term starting this fall.

Share this: