Moore v. Harper: The end of free and fair elections (and democracy) is on the horizon

Background

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators. -- US Constitution, Article 1, Section 4

Explanation & context: Sec. 4 specifies that state legislatures control the times, places and manner of federal elections, but Congress can pass law to overturn state law. Sec. 4 does not mention (i) what jurisdiction state courts have, if any, or (ii) how conflicts between a state election law and a state constitution are to be handled. The radical right wants to neuter state courts so radicals are free to pass laws that neuter the results of federal elections, even if it conflicts with the state constitution. Key points:

• The concept of free and fair elections is not in the US Constitution but it can be found in state constitutions.
• Republicans control the legislatures of 30 states.
• If federal elections of 30 Republican-controlled state legislatures are rigged for partisan advantage, Democrats will very likely not be able to control the House of Representatives or the White House. Senate elections cannot be rigged because they are statewide elections and there are no voting districts to rig.  
• Republicans could act to eliminate state constitution provisions that protect free and fair elections, but it is easier and far better political optics to not be seen as opposing free and fair elections. Therefore, get the Supreme Court to give state legislatures the power to get state courts out of the way as the last line of defense of free and fair elections. Republicans will simply deflect blame to the Constitution, Democrats and/or the Supreme Court for whatever public blowback there might be from rendering of federal elections a purely partisan sham.
• Republicans already have the power to freely rig elections for state legislatures for partisan advantage, so their lock on control of state legislatures seems to be baked in for decades to come. That means that Democrats will very likely be locked out of the House and White House for decades to come, unless enough red states turn blue and the blue states play the same hardball rigged elections game that radical Republicans are playing.
• Some blue states have already unilaterally surrendered the game because they have state constitutions or laws that limit election rigging in defense of free and fair elections. For example, California has 9 contested House voting districts because a commission draws districts to protect voters. If that law went away, the number of competitive House districts would drop from 9 to maybe 3 or 4, maybe less.
• As long as Congress remains gridlocked, Republicans will block all proposed federal laws designed to defend free and fair elections. Senate Democrats cannot get past the filibuster, so they are 100% neutered.
• To hint at the depth of Republican cynicism and fascist belief that elections are just crap that need to be neutered, consider HR1. HR 1 was the first bill the House passed after Democrats took control of the House in Jan. 2021. The proposed bill expands voting rights, changes campaign finance laws to reduce the influence of money in politics, bans partisan gerrymandering, and creates new ethics rules for federal officeholders. Nearly all Republicans in congress bitterly oppose HR 1. It is dead in the Senate because the Democrats cannot override a Republican filibuster. 
• Many or most regular conservatives (assuming any are left) and nearly all or all radical right Republicans see HR 1 as vicious, partisan hardball tactics. If protecting free and fair elections is vicious, partisan hardball tactics, then the fascists are right. But if so, then what does one call what the fascists are trying to accomplish in Moore v. Harper (discussed below), eliminating free and fair elections? Softball politics? 

Moore v. Harper, the end of free and fair elections 

and the rise of American fascism 

A couple of weeks ago, the Supreme Court accepted a case called Moore v. Harper. Radical right Republicans intend to use that case to make a legal argument called the “independent state legislature” theory the law of the land. At the same time, the radical right wants to obliterate the concept of free and fair elections. This is something that Republican fascists have been dreaming about for decades. The concept of free and fair elections stands in the way of the radical right’s insatiable lust for much more power and wealth for elites. 

In essence, the radicals want the Supreme Court to declare that state courts have very little jurisdiction to rule on state laws that potentially limit a legislature’s ability to rig elections for partisan advantage. At present, state courts can rule that a legislature’s gerrymander or overturn the results of a popular vote is unconstitutional under the state’s constitution. If the Supreme Court decides that the independent state legislature theory is the correct interpretation of Art. 1, Sec. 4 of the Constitution, that would hand power to fully obliterate the free and fair concept and replace it with raw partisan power in deciding elections. The popular vote becomes irrelevant.

The Moore case comes out of North Carolina where the state courts rejected a radical Republican gerrymander of federal voting districts for the House of Representatives.[1] One legal analysis comments:

In rejecting petitioners’ Elections Clause challenge, the North Carolina Supreme Court cited Rucho v. Common Cause, 588 U.S. ­­­___ (2019), for the proposition that “state constitutions can provide standards and guidance for state courts to apply” in addressing partisan gerrymandering, and claimed “a long line of decisions” by the U.S. Supreme Court confirms the more general proposition that “state courts may review state laws governing federal elections to determine whether they comply with the state constitution.” The General Assembly responded by preparing a revised congressional map. The trial court rejected that map, however, and adopted one prepared by three Special Masters it had appointed to assist in the remedial process. The North Carolina Supreme Court and U.S. Supreme Court denied petitioners’ motion for a stay, though four Justices wrote to note the importance of the Elections Clause issue.

Petitioners [the radical right Republicans] argue that “[t]o secure self-government, [the Elections Clause] vests the power to regulate federal senate and congressional elections in each State’s legislature, subject only to supervision by Congress. The state supreme court’s usurpation of that authority—pursuant to vague and indeterminate state constitutional provisions securing free speech, equal protection, and free and fair elections—simply cannot be squared with the lines drawn by the Elections Clause.” Petitioners insist that “’the Legislature’ means now what it meant [at the founding], ‘the representative body which ma[kes] the laws of the people.’” “The Constitution thus grants the state ‘Legislature’ primacy in setting the rules for federal elections, subject to check only by Congress.”

There is is, right out in the open: Four radical right Supreme Court justices want to blow off free speech, equal protection and free and fair elections. Equal protection is targeted because it can be used as a basis to argue that a rigged election violates the rights of people whose votes have been trashed by Republican tyrants. 

The importance of this case ranks right up there with Dobbs v. Jackson, the Supreme Court decision that obliterated Roe v. Wade. Arguably it is significantly more important. Moore is a direct fascist attack on one of the last lines of defense of democracy. The radical Republican goal here is crystal clear and undeniable: They want to neuter the power of people’s votes. 

Footnote: 

1. Politico comments on the Moore case:

But the Republican legislators argued in an appeal to the U.S. Supreme Court that the state court had extremely limited authority to police the legislature on federal election matters — a theory known as the “independent state legislature” theory.

The theory holds that state legislatures have near-uncheckable authority to set procedures for federal elections — and state courts have either a limited or even no ability to rule on those laws. The theory is based on a pair of clauses in the constitution, the Electors Clause and the Elections Clause, that mention state legislatures but do not explicitly mention the judiciary.

Republicans have increasingly promoted the theory as a way around state courts that have recently struck down redistricting maps as partisan gerrymanders.