Quinta Jurecic on thie Moore v. Harper case in The Atlantic:
Over the past several months, both the litigants and outside parties—known as amici curiae, or “friends of the court”—have filed a mountain of briefs hashing out these issues. These amicus briefs preview how much disruption the independent state legislature theory could really create. But more than that, they reveal a legal landscape in which once-wild arguments have suddenly entered the mainstream—a landscape transformed by Donald Trump, not just through his reshaping of the federal judiciary but also through his influence on the ideas that are burbling up. Moore v. Harper may not be about Trump, but it is of his making…
The likelihood that the Supreme Court will adopt Eastman’s 2020 approach—what the law professors Leah Litman and Kate Shaw deem the “‘state legislature as the end of democracy’ theory”—is essentially nil. Indeed, in their reply brief, the North Carolina legislators deny what they term the “scurrilous suggestion” that their argument would provide grounds for an Eastman-style rewrite of the electoral process. But the election-law expert Rick Hasen has warned that “a muscular reading of the independent state legislature theory would provide a fig leaf for state legislators to try to reverse presidential election results and overturn the will of the people in a presidential election.” Hopefully, the judiciary would step in to stop such an abuse of power—but there’s a risk that the Supreme Court might “conclude it is a political question the courts can stay out of,” Hasen told me over email.
And a Supreme Court ruling endorsing some version of the independent state legislature theory in Moore could provide a GOP legislature with legal-sounding cover for such a ploy, even if the theory itself wouldn’t actually bear that weight. Hasen’s own amicus brief—along with briefs filed by the longtime Republican election lawyer Benjamin Ginsberg and a group of conservative lawyers led by a well-respected former judge, Thomas Griffith—warns that a flood of federal litigation challenging actions by election administrators as unconstitutional might create an environment of confusion and distrust that could fuel bogus claims of election irregularities. If the Court adopts the North Carolina legislators’ vision of the independent state legislator theory, Ginsberg wrote, “the credibility of the electoral system” will be a “guaranteed casualty.”