So here’s a big one: Under marching orders from Trump, MAGA Republicans are trying to claim that state legislatures have unchecked power to run federal elections, with the authority to pass wildly unconstitutional election laws and voting procedures without consequence. Republicans say that no matter how extreme the gerrymander, how racist the election administration (or administrator), or how obviously illegal and exclusionary the voting system, they have an unlimited right to do it—and that even their own state constitutions or state courts have no power to stop them. This absurd theory gained steam after Trump’s efforts to steal the 2020 election, and this fall, his cronies on the United States Supreme Court just might enshrine it into law. Let’s unpack this dangerous nonsense known as independent state legislature theory.
What you need to know
Republicans dominate state legislatures after several decades of gerrymandering and strategic investment on their behalf. In order to exploit that power, they are trying to remake American elections under a framework that would give their party overwhelming power to control election procedures—and determine national outcomes—almost exclusively. This bogus, anti-democratic framework, known as independent state legislature theory, flies in the face of the Elections Clause of the US constitution, which says states have the power to administer federal elections, but that Congress has the ultimate responsibility to oversee or amend election laws.
In short, it’s a naked power grab.
You can imagine the kind of damage a state legislature made up of Trump acolytes could do to their states’ congressional maps and voting laws. Now imagine that those laws could never be challenged in state court, no matter how egregious they were. That’s what is at stake in Moore v. Harper, a case pending with the United States Supreme Court. The question at the heart of the case: Do state supreme courts have the right to strike down severely gerrymandered maps or other restrictions on voting passed by the state legislature, even if they violate the state constitution? The answer should be a fast and obvious “YES,” and in fact, most legal scholars believe that this theory is nonsensical and would have severe detrimental effects to our democracy. But four of the six conservative justices on the Supreme Court have already signaled that they support it.
Alito’s thumb on the scales of SCOTUS
Even on a Supreme Court stacked with radical conservatives, Samuel Alito stands out. After authoring the decision that stripped away reproductive freedoms from millions of Americans earlier this year, he is now the main cheerleader and champion for the independent state legislature theory. Make no mistake: this case is at SCOTUS because Samuel Alito wanted it there.
While this theory was used as a justification by Trump lawyers for the ‘false electors’ scheme in 2020, it’s been soundly rejected by the courts, including SCOTUS as recently as 2015. But that all changed when North Carolina legislators went whining to Alito after their openly-gerrymandered maps had been thrown out (twice!) for violating the state constitution. After their request to reinstate the maps was denied by the Supreme Court, Alito wrote a dissent that spelled out what he believed was a pathway to legality for the theory. When the North Carolina lawmakers appealed, the MAGA Republicans on the Court, led by Alito, finally agreed to hear the case. And here we are.
This is Alito attempting to create a legal precedent out of thin air. Constitutional scholars across the country have spoken out in near-universal condemnation, and in a rare rebuke, the Conference of Chief Justices, representing the judicial leadership of all 50 states, filed an amicus brief with the Court laying out the case for rejection of the crackpot theory.
Watch the states
Federal officials like Ted Cruz and Marjorie Taylor Greene get all the attention, but state-level officials are the reason why this case has reached the Supreme Court. Even though Moore v. Harper is about North Carolina, other states have signed onto the suit, and the effort to centralize power in MAGA hands is happening nationwide. These key states offer a glimpse at how MAGA republicans are working to destroy elections for all of us:
Arizona: Arizona remains a top target for election deniers, like MAGA gubernatorial candidate Kari Lake, who has proposed radical changes to election systems, including banning vote counting machines and absentee voting. The state’s MAGA Attorney General Mark Brnovich has been pushing hard for legislative control over elections. This year, he sued AZ Secretary of State Katie Hobbs to force her to make changes to the state’s election manual—a lawsuit that resulted in delays, chaos, and confusion in the state. Brnovich and eleven other Republican Attorneys General have filed an amicus brief supporting NC in the Moore case.
Georgia: After the mess of the 2020 election, the lesson that Georgia election officials took away from the 2020 election was apparently “make it even harder for people to vote.” They proposed some of the most restrictive voting laws in the country, including making it a crime to offer a drink of water to someone forced to stand in line for hours to vote. If this case is successful, they’ll be able to continue to roll back voting rights without fear of oversight.
Michigan: A key battleground state, Michigan’s future elections are at risk. Once one of the most gerrymandered states in the US, election advocates scored a major victory in Michigan with the creation of a nonpartisan redistricting commission that led to new, fairer maps in the state last year. But that hard-won progress may all be swept away: if we lose Moore, the Republican-controlled state legislature would be free to dissolve the commission.
The ultra-MAGA candidate for Secretary of State, Trump acolyte Kristina Karamo, rose to prominence in 2020 as an election denier, and she’s already pledged to eliminate vote by mail in the state. And Republican candidate for Attorney General Matthew DePerno is a conspiracy theory-spouting extremist who’s called for arresting the Governor and is currently under investigation for improperly accessing voting machines. (And oh yeah — he also doesn’t know the difference between fentanyl and Plan B.) If we want to win in 2024, we have to protect election integrity in Michigan in 2022.
Pennsylvania: Confederate cosplayer/MAGA gubernatorial candidate Doug Mastriano has proposed a set of sweeping changes to voting that would transform the state, including de-registering every single voter and forcing them to re-register. His proposals are illegal under current law, but that didn’t stop him in 2020, when as a state senator he introduced legislation that would throw out the will of the voters and send alternate, Trump-supporting electors chosen by the legislature to Congress on January 6th.
WISCONSIN: Assembly Speaker Robin Vos’s refusal to admit Trump lost in his state led to endless chaos, contempt citations, and over $1 million in taxpayer dollars spent, all to relitigate an election that wasn’t even close. It’s a glimpse of the kind of partisan election administration we have to look forward to if we don’t successfully beat back what basically amounts to a coup with more expensive lawyers and a SCOTUS Justice driving the clown car.
How we’re talking about it
- Alito’s MAGA agenda is guiding the Supreme Court and leading the charge in the assault on democracy. By even hearing this case, conservatives on SCOTUS are giving credence to an anti-American effort to unravel our elections and steal your vote. You can forget about old-fashioned ideas like impartiality and precedent: this is as deeply activist as a court can be.
- Your freedom to vote is on the line. This case could decide if and how you are able to register to vote, who and how your vote is counted, and whether there are any legal guardrails at all for a legislature dominated by a single party. MAGA wants free reign; we want free elections.
- Independent state legislature theory is the Pizzagate of legal arguments. Anyone with a brain can see that this is a power grab, but MAGA Republicans push conspiratorial bullshit without shame. Although legal experts and constitutional scholars overwhelmingly reject it, right-wing electoral wins over the past decades have brought us to this precipice.
- There isn’t one single state in the U.S. where the governing body matches the diversity of the state’s population. MAGA republicans want to consolidate power in their own disproportionately-white, disproportionately-male hands.
- The fastest way to step back from this precipice is by defeating Republicans. We need a Congress that will preserve its constitutional responsibilities and hold a rogue Supreme Court accountable to the American people and the Constitution. That means electing more Democrats in the midterms to expand our Senate majority and ensure that we don’t allow Republican wins in 2022 to determine the outcome in 2024.
- This case is key, but it’s just one of many attacks on elections happening right now. Nearly a third of Republicans running for statewide office in 2022 are election deniers or refuse to acknowledge Joe Biden as the lawful president. Meanwhile, MAGA militias and state officials are preparing to challenge unfavorable results everywhere they can. Our first priority is to win the election outright, then we must defeat their challenges, then we must defeat this case.
More ways to take action
- Raise your voice for freedom: join or plan an Our Freedoms, Our Vote rapid response action near you. When the J6 Committee releases their interim report, we’ll gather all across the country to speak out for Democracy.
- No election denier should ever run for office uncontested: Stand up for your community and Run For Something
- Help fight disinformation: Check out Indivisible’s Truth Brigade
- Think local: support the state legislature races that are key to protecting fair elections in the states. CrushTheCoup.org
- Help us hold the House and win two more Senate seats: Sign up to Give No Ground