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Vice presidents are unreliable when you want to overturn a democratic election, Republicans found on Jan. 6, 2021. Mike Pence would not violate his oath to placate Donald Trump’s desire to subvert democracy and declare the 2020 loser the winner.
Another means must be found. North Carolina Republicans think they have one: the independent state legislature doctrine. They argue that state legislatures have the power to pick presidents when they feel like it, and damn the will of voters.
The Raleigh News & Observer reviews the case, Moore v. Harper, that the Roberts Supreme Court will hear on Dec. 7. It could be another Dec. 7 that lives in infamy. Tim Moore is Speaker of the North Carolina House of Representatives.
“This is the single-most important case on American democracy, and for American democracy, in the nation’s history,” said Michael Luttig, a former federal appellate judge. Luttig advised Pence to rebuff Trump’s Jan. 6 demand that, as president of the Senate, he send slates of electors back to the states:
If the people of a state vote for a presidential candidate who doesn’t belong to the same political party that controls the state legislature, would courts also be powerless to stop lawmakers from giving their Electoral College votes to their own party’s candidate, instead?
Not everyone agrees that it would — and skeptics include both supporters and opponents of the theory.
“Moore v. Harper is about who has the constitutional authority to draw federal election maps and has nothing to do with presidential electors,” said Lauren Horsch, a spokeswoman for top Republican Sen. Phil Berger.
“This case is extremely dangerous to American democracy, but it would not remove all checks on state legislatures,” Helen White, an attorney for the voting rights group Protect Democracy, told The N&O this summer, when the court first agreed to hear the case. “This would not give anyone ‘license to coup.’”
Luttig, however, said it’s exactly how Trump intended to stay in office despite losing the 2020 election.
For Republicans, the Constitution is more of a guideline than a rule, as Dr. Peter Venkman might say.
Should the court rule in Tim Moore’s favor, the courts will have no check on state legislatures’ modifications to any rules regarding the conduct of federal elections in the states.
Several election law experts with national profiles, like Rick Pildes and Derek Muller, have written that even if the Supreme Court embraces the most extreme version of what North Carolina lawmakers are asking for, it wouldn’t give state legislators the ability to directly overturn a presidential election.
Pildes, however, has written that with a win, state legislators could feel newly empowered to try more complicated attempts at overturning presidential results in their states. That could include pushing sham audits, he said, “with the legislature then finding that the ‘true’ electors the people supposedly chose were ones the legislature would then certify.”Rick Hasen, a legal scholar who runs the influential Election Law Blog, wrote on Twitter that state legislators would not have the power to overturn presidential election results, under a true academic reading of the case.But that might not matter, he said, if enough people in power decide to pretend otherwise.
A large swath of the country for nearly two years now has pretended Trump won the 2020 election.