Supreme Court considering 'nonsense theory' that would let Republicans overturn elections they don't like: commentator

Writing for The Daily Beast this week, Wahajat Ali outlined the dangers of the new Moore v. Harper case the Supreme Court has agreed to hear — and how it could empower Republican state legislatures to ignore their own constitutions and throw out election results they don't like.

"The nation is still reeling from the blitzkrieg unleashed by an extreme Supreme Court that used its last term to bulldoze a woman’s right to abortion, neutered the EPA’s ability to regulate greenhouse emissions, limited states’ rights to regulate guns, eroded the separation of church and state, and weakened civil rights by ruling law enforcement can’t be sued for failing to read a person their Miranda rights," wrote Ali. "But the Supreme Court isn’t done trying to implement minority rule and advance its Christian nationalist agenda. They have agreed to hear Moore v. Harper, the most consequential case to our nation’s democracy that most Americans still aren’t talking about."

The background of the case is that North Carolina Republicans had a congressional gerrymander overturned by the state's Supreme Court, ordering a redraw of the maps that resulted in relatively fair districts. However, GOP officials from the state have sued to restore the old maps, advancing a novel theory called the "independent state legislature doctrine." The argument goes that the term "legislature" in the Elections Clause of the Constitution means that legislatures have final, unchecked say over election laws in their state — meaning state courts can't review whether election policies are constitutional.

ALSO IN THE NEWS: Oath Keepers chief Stewart Rhodes' son explains why he left 'daddy Trump' — and the 'far-right' cult

"If the court buys this nonsense theory, then the Republican-controlled state legislatures would be immune from any interference from state courts, governors, and elected officials who step up to protect voting rights and fight back against 'constitutional mischief,'" Ali put it simply.

Legal scholars have dismissed this idea as radical, and even retired Judge Michael Luttig, the father of the conservative legal movement, has called it ridiculous. The last time this theory came up before the Supreme Court in 2014, in a case where Republicans argued it was unconstitutional for Arizona voters to approve an independent commission instead of the legislature to redraw districts, it was rejected — but Justice Anthony Kennedy, the deciding vote in that case, is no longer on the court.

The real threat, though, wrote Ali, is that it could have consequences even beyond redistricting. A broad ruling that legislatures have unchecked power over elections could empower Republican lawmakers in swing states to throw out Democratic presidential votes in 2024 — something Trump tried and failed to do in 2020. It would, in effect, be a legal coup.

Congress, Ali noted, could solve this by amending the Electoral Count Act of 1887 to forbid states from throwing out electors — the Elections Clause, after all, explicitly says Congress can override state legislatures on federal elections, even if Republicans are trying to argue governors and state courts cannot — but it remains unclear if the GOP will reach a deal on this.

READ: Arizona AG's tragic implosion as a Trump wannabe likely cost GOP chance at a Senate seat: columnist

"In the meantime, President Biden and Democrats must sound the alarm about the GOP’s ongoing coup and educate the majority, pressure the Supreme Court with threats of expansion and reform, and hope enough Republican senators come to their senses and reform the Electoral Court Act of 1887 to save our democracy," concluded Ali. "Or, we can just hope that the Supreme Court refuses to yield to treachery and 'constitutional mischief.' Call me pessimistic on that last one."

You can read more here.