Supreme Court, Washington, D.C.

As many of you know the First Monday of October is the traditional start of the Supreme Court term that will run until June of next year. This year may be one of the most momentous SCOTUS sessions ever.

To begin with, they already have on their docket the case of Moore v. Harper. In case you have not heard of this case, strap yourself in and learn about what may be the most radical case the Supreme Court has ever heard.

Moore v. Harper is a case from North Carolina that seeks to legitimize a once far right fringe theory called the “independent state legislature.” Here is what the theory means via dailykos.com: 

The U.S. Supreme Court dropped a bomb in late June when it agreed to hear a North Carolina gerrymandering case that legal scholars and advocates say could have dire consequences for America’s already imperiled election system.

The case in question, Moore v. Harper, could give increasingly extremist state legislatures almost unchecked power over setting the rules for federal elections. That power could be harnessed by legislatures to pass voter ID laws and other voter suppression legislation. It could be used to outlaw voter-approved independent redistricting commissions, advocates warn. And in a worst-case scenario, it could be used to subvert the will of the voters and declare the loser of the 2024 presidential election the winner, some of them argue.  ( my bolding- ed.) (The court is expected to issue its ruling before July 2023.)(The court is expected to issue its ruling before July 2023.) 

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“The capstone implication of this fringe legal theory is that state legislatures could choose their own presidential electors, effectively nullifying the popular vote” in those states, warned Lala Wu, a San Francisco attorney who is executive director of Sister District, a grassroots organization that also supports state legislative candidates.

But even a less radical endorsement of the theory could enable state legislatures to use “whatever made-up standards they want” to throw out disputed ballots in violation of state constitutions, said Carolyn Shapiro, a professor at the Chicago-Kent College of Law and the founder and co-director of Chicago-Kent’s Institute on the Supreme Court of the United States. “We’re in a situation where you have people who are making completely unfounded claims of fraud and where the belief that there was cheating going on has become such a strong article of faith among members of one party. There’s a real risk that [legislatures] will not count perfectly legally cast ballots,” she said.

Said simply, if the Supreme Court agrees to the “independent state legislature” our votes don’t mean anything. This would be an end to our democracy. Take a gerrymandered legislature that decides they disagree with the popular vote and decides that instead of choosing electors for the popular vote winner in that state, the electors are given to the loser in that state.

Ending the electoral college forever would be the best, but that is nearly impossible.  

In order for the Court to hear a case, the Court must grant what is called certiorari. That takes a vote of 4 Justices. That doesn’t necessarily mean that all four Justices agree with the cases position, but in this case that seems to be likely. 

So, the 2024 presidential election may be decided by state legislatures that we vote for this November. Think about that when you cast your vote this year.