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Leading up to the U.S. Supreme Court’s oral arguments this week in Moore v. Harper, observers described the case variously as having the potential to “radically reshape how federal elections are conducted,” “leave state legislatures virtually unchecked in making rules for congressional and presidential elections,” and be “a fundamental change in the way elections are conducted.”
The case, out of North Carolina, concerns what’s known as the independent state legislature theory. It’s a sweeping argument, one nearly all experts say defies precedent — that the Constitution gave state legislatures the power to draw political maps and set election laws, and state courts can’t act as a meaningful check on such decisions.
That is, as Justice Elena Kagan pointed out during oral arguments, a theory with big consequences. State lawmakers have been writing record amounts of legislation concerning elections. And even setting aside litigation over redistricting, the number of cases related to election laws and rules has been rising, with no administrative decision seemingly too small to wind up in court.
And so a weary nation finds itself, again, hearing that its democracy has arrived at a critical inflection point.
Unlike a few weeks ago, its fate won’t be decided at the ballot box. Instead, it’s up to the nine justices who sit on the nation’s highest court. It was clear they felt the weight of it.
The arguments stretched over approximately three hours, unusually lengthy. Every justice had questions for the lawyers arguing before them.
Hosts of legal luminaries filed briefs in the case, and there were some odd ideological bedfellows lining up to oppose the independent state legislature theory. The Conference of Chief Justices, which represents the chief justices of the highest courts in all 50 states, a group that crosses partisan lines, files amicus briefs “only when critical interests of the state courts are at stake.” It did so here, arguing that the Constitution “does not bar state court review of state laws governing federal elections under state constitutional provisions.” Justice Brett Kavanaugh, widely viewed as one of the justices whose vote may determine how the court ultimately rules, cited that brief when he asked the lawyer representing North Carolina legislators how to reconcile the fact that nearly all state constitutions regulate federal elections, including early state constitutions.
Much ink has been spilled on the potential outcome of Moore, which the court is likely to release in June.
The key word here, of course, is potential. The sense among experts after the oral arguments is that the justices who are seen as pivotal to the outcome — Chief Justice John Roberts and Justices Amy Coney Barrett and Kavanaugh — didn’t seem eager to rule as broadly as North Carolina legislators have asked, but instead were searching for a middle ground through the legal morass, a workable standard that puts some limits on state courts.
Maybe so. But however the court ultimately rules, months from now, the fact remains that the nation is spiraling from one test of democracy to the next as various players try to reshape the rules in an attempt to gain advantage. In a brief emphasizing the practical concerns raised by the independent state legislature theory, longtime Republican elections lawyer Benjamin L. Ginsberg pointed out confidence in elections is already at a low ebb, and ruling broadly for the independent state legislature theory could make it worse by destabilizing the current legal regimen governing elections and upending existing checks and balances.
There’s no shortage of inspirational quotes about democracy floating about, including apocryphal ones whose origins have long been lost but that somehow still stick around. One that gets pulled out from time to time says that “democracy is a slow process of stumbling to the right decision instead of going straight forward to the wrong one.”
The question as to whether American democracy is stumbling towards the right decision or the wrong one is always in the eye of the beholder. But somehow, the question keeps coming up. The justices’ decision in Moore has the potential to have extraordinarily messy ramifications, both legal and practical, so the public must hope the majority stumbles to the right one.
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By Jessica Huseman
In 1972, polling places in 64 Connecticut towns purchased fabulous new aqua-colored voting machines, which would have been great had the curtains not been see-through under the fluorescent lighting at polling locations. Hartford voters referred to it as “the peek-a-boo election.” The secretary of state’s office made emergency calls to all counties, “instructing registrars to pin pillowcases or plastic trash bags or tablecloths over the curtains.” “This is just incredible,” Gloria Schaffer, then Connecticut’s secretary of state, told The New York Times after rushing to her own polling place to see for herself. “It was absolutely obvious.”
New From Votebeat
As Maricopa County investigates what exactly caused machines to reject thousands of voters’ ballots on Election Day, a Votebeat analysis of technical evidence found that local officials may have pushed the county’s ballot printers past their limits, Jen Fifield reports for Votebeat Arizona.
Arizona officials certified the state’s midterm election results Monday after a tumultuous month of challenges to the certification process that was reminiscent of 2020 and potentially set the stage for 2024. That kicked off the five-day period in which lawsuits challenging the results can be filed in court and a long timeline for three statewide recounts, which are expected to stretch to the end of the month, Fifield reports for Votebeat Arizona.
From Detroit to the Upper Peninsula city of Marquette, election workers this week and next week are re-tallying the votes cast on two proposals that were on the November ballot. A nonprofit group invoked a little-used provision in state law to trigger the recount, even though the two ballot proposals were approved by a margin that makes changing the outcome a near-impossibility, and is paying the costs with money from prominent boosters of election conspiracy theories, Oralandar Brand-Williams reports for Votebeat Michigan.
The Wolf administration is looking to decisively quash a request by state Senate Republicans for sensitive voter information that the lawmakers made as part of an inquiry into the 2020 election, which they falsely charged was fraudulent, Carter Walker reports for Votebeat Pennsylvania.
Harris County officials have yet to explain the full cause of the ballot paper shortages, long lines, and voting machine problems on Election Day, and experts say the lack of information is fueling a bipartisan surge of criticism — both valid and baseless. At least two losing Republican candidates, citing the problems, have already filed legal challenges to void the Nov. 8 election and order a new one, and lawyers are warning election officials to expect more, Natalia Contreras reports for Votebeat Texas.
In Other Voting News
- Special counsel Jack Smith, who is investigating former President Donald Trump’s role in the Jan. 6, 2021 attack on the U.S. Capitol, subpoenaed local election officials in Arizona, Michigan, and Wisconsin for communications with Trump, his campaign, and his allies, the Washington Post reports.
- Prominent Republicans now say the party must encourage voters to cast ballots early and by mail, reflecting growing alarm that conspiracy theories about elections spread by former President Donald Trump and his followers are hurting the party’s electoral prospects, Politico reports.
- A new lawsuit claims Colorado’s signature-matching requirements for mail ballots disenfranchises voters, Colorado Public Radio reports.
- Georgia’s unusual runoff election system was created to disadvantage Black voters in the 1960s, the Washington Post reports. And Republicans, stung by the loss of a U.S. Senate seat last week, are rethinking changes they made to state law last year to shorten the in-person early voting period for runoff elections and considering other changes, the New York Times reports.
- Lawyers for Dominion Voting Systems next week will depose media mogul Rupert Murdoch in the company’s $1.6 billion defamation suit against Fox News, the Washington Post reports.
Carrie Levine is Votebeat’s story editor and is based in Washington, D.C. Contact Carrie at email@example.com.