That’s a sigh of relief for anyone who cares about averting the most legally outlandish aspects of 2020. Or a legislature can’t just claim fraud plagued a recent election and, willy-nilly, undo the results without court oversight. Say, a group of rogue legislators can’t just set up a slate of fake electors, postelection, and hope their scheme escapes judicial scrutiny. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote in the 6-3 opinion, which stands for the principle that states or even voters, through their own courts, can ensure that state lawmakers aren’t doing things they’re not supposed to do. Harper, declining the invitation to let state legislatures go haywire in administering federal elections. Luckily for democracy, the Supreme Court on Tuesday, with Roberts at the helm, roundly rejected the claim in Moore v. That the likes of John Eastman, one of the legal architects of the failed January 6 attempt to deny Joe Biden the presidency, was all in on the theory tells us a lot about its potential for mischief, electoral or otherwise.
And soon Republicans at the state level began invoking a theory lurking in its pages, code-named the independent state legislature theory, that could grant state lawmakers broad authority, unconstrained by courts or their own state constitutions, to set the rules of federal elections to their liking.Ī fringe legal theory was born. But thanks to Donald Trump and a cadre of lawyers who wanted to see him win at all costs, that ruling was starting to become great again. Gore, the landmark case that decided the 2000 election between Bush and Al Gore, has long been relegated to a dark place in constitutional law-rarely, if ever, cited approvingly in the decades since. Some five years before he became chief justice of the United States, John Roberts was a respected lawyer in private practice who answered the call to fly to Florida and assist the legal team that would help George W.
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