U.S. Supreme Court set to hear case that could upend elections

The legal theory behind the scheme that tried to keep former President Donald Trump in power after the 2020 election could find its way into a U.S. Supreme Court opinion — if the court’s conservative majority listens to the Trump ally at the center of the investigation into the Jan. 6 insurrection.

The U.S. Supreme Court will hear arguments Wednesday in a case that could clear the way for state legislatures across the country to have unconditional authority at the state level to set election rules. The case stems from a lawsuit in North Carolina called Moore v. Harper.

Typically, when a state legislature passes a law, it becomes subject to various checks and balances, like review by that state’s courts or veto by its governor.

But “independent state legislature theory” says state lawmakers have exclusive power to set the rules in federal elections without any opportunity for that state’s courts or executive branch to intervene. This would radically impact gerrymandering and voting rights cases.

Some brandish the theory to argue that nothing is final until Congress counts the electoral votes, and with an extreme reading of the Constitution, that statehouses could have the ability to submit separate slates of electors in the Electoral College, and that then Vice President Mike Pence had the power to count those slates of electors as valid instead. Still, experts say a move like that wouldn’t likely hold water.

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Based in part on this theory, Trump lawyer John Eastman tried to convince Pence that he could overturn the results in 2020 by tossing out the electors sent by seven states — including New Mexico — and replace them with electors for Trump.

The FBI in June seized a cell phone belonging to Eastman while he was in a parking lot at a strip mall in Santa Fe, New Mexico’s capital city.

Federal agents are investigating the fake elector scheme, including a group of local Republicans who signed false certificates attempting to hand the state’s five electoral votes to Trump.

Five people behind fake election certificates likely broke NM law, prof says

Eastman is not a party to the North Carolina case, but he filed a brief arguing that the question before the justices is related to the presidential electors clause in Article II of the U.S. Constitution.

Thirteen secretaries of state reject the theory in their own brief, including New Mexico Secretary of State Maggie Toulouse Oliver.

“State courts have historically been an appropriate forum to determine election issues, including as they relate to federal elections and redistricting,” the New Mexico Secretary of State’s Office said in a written statement on Monday. “Any determination otherwise will create unprecedented election administration issues and possible unintended consequences, to include but not limited to potential overturning of election results.”

Both sides in the case say the independent legislature theory is a different issue, said Neal Katyal, former acting solicitor general of the U.S. and the attorney who will argue before the court on Wednesday on behalf of Common Cause and other plaintiffs. Katyal was speaking in a news conference on Dec. 1.

New Mexico is an example of how Moore v. Harper will affect other states where Republicans do not hold a majority in the statehouse, said Mario Jimenez, executive director of Common Cause New Mexico, in an interview on Monday.

“This is very dangerous, considering that this is coming from a state where those who have filed do in fact retain a majority,” Jimenez said, referring to the Republican control of the North Carolina Legislature.

Jimenez said he thinks this is not something that any minority party in New Mexico would support.

“You would not want to have a legislature to be able to decide willingly, ‘Well, we appreciate the people speaking up and voting, but we disagree with you, we think person X should be the one that’s elected,’” Jimenez said. “That’s quite dangerous when we’re playing with politics in this manner.”

Allison Riggs, legal counsel and co-director of Southern Coalition for Social Justice, said at last week’s news conference that the independent state legislature theory is radical and extreme, and effectively says state constitutions are meaningless when it comes to protecting the rights of voters in federal elections.

“It would create a dangerous pathway — not just in North Carolina but across the country,” Riggs said. “State legislatures have to abide by their state constitutions when regulating elections. It is a dramatic departure from the practices of the U.S. Supreme Court to conclude otherwise.”

Clarification

This story was updated on Tuesday, Dec. 6, at 11 a.m. to indicate that state legislatures would have unconditional authority at the state level to set election rules if the Supreme Court rules in the petitioners’ favor.