The U.S. Supreme Court Wednesday morning will hear oral arguments in a case that could literally determine the future direction of American democracy – based on a theory Ginni Thomas, Supreme Court Justice Clarence Thomas‘ spouse, was pushing in several states to try to overturn the 2020 election results and install Donald Trump in office.
Marc Elias, the attorney for the Democratic Party who won all 64 cases filed by the Trump campaign and its supporters challenging the 2020 presidential election results, has issued a warning about Wednesday’s case, Moore v. Harper.
Elias at his Democracy Docket website calls it “a case out of North Carolina that gives the Court the opportunity to consider the fringe independent state legislature (ISL) theory.” On social media he calls it, “the most consequential case for our democracy this term.”
Simply put, the Supreme Court justices today will decide if only state lawmakers, some, like in North Carolina, in tremendously gerrymandered districts that give Republicans a guaranteed majority, should be the only ones who can decide all the rules of how their state conducts elections, including ignoring the popular vote and deciding for themselves who their state has “elected” to be President.
“The independent state legislature (ISL) theory is a right-wing constitutional theory about who has the power to set rules for federal elections,” Elias explains. “The theory interprets the word ‘legislature’ in the U.S. Constitution to mean that state legislatures — and only state legislatures — can make laws regulating federal elections. This differs from the standard interpretation, in which ‘legislature’ means the state’s general lawmaking process, which includes the governor’s veto, citizen-led ballot measures and rulings of state courts.”
“By excluding all other parts of the state government,” Elias continues, “the theory would allow state legislatures to set election rules and congressional maps unchecked — not by governors, state courts, the people or even state constitutions themselves.”
Robert Reich, a Berkeley professor, frequent cable news commentator, and former U.S. Secretary of Labor, explains the case another way: “Moore v. Harper could let extremist state legislatures disregard the popular vote and choose their preferred presidential candidate.”
On Tuesday, Reich issued this warning: “Ginni Thomas used the independent state legislature theory in her efforts to pressure state lawmakers to overturn the 2020 election results. This theory is central to a case before SCOTUS tomorrow, called Moore v. Harper. Are we really going to let Clarence Thomas rule on this?”
Last week he posted this short video to explain the case.
We’re about to witness one of the most important cases ever to come before the Supreme Court.
Moore v. Harper could let extremist state legislatures disregard the popular vote and choose their preferred presidential candidate.
That’s not hyperbole. pic.twitter.com/u6OFF2u37u
— Robert Reich (@RBReich) December 2, 2022
Watch Reich’s video above or at this link.