The Supreme Court hearings in Moore v. Harper highlight how a fringe legal theory seems to offer a quick fix for very specific Republican grievances.
—have expressed not only willingness but eagerness to take on such a far-out case, as has, to a somewhat lesser extent, a fourth, Brett Kavanaugh. It’s shocking that any Justices did. But then a similar chain of reasoning led many Republicans to fall in behindAt the center of Moore v. Harper is what’s known as the independent-state-legislature doctrine, or I.S.L.
The oral arguments did not go all that well for the petitioners. The problem that emerged was twofold. First, of course, was the extremism of the legislators’ position, which Thompson did little to conceal or mitigate. There was an awkward exchange between Thompson and Gorsuch, who was trying to cue the lawyer up to explain that he was really responding to problems that occur when a state court overreaches or “annuls the law outright”—a familiar conservative complaint .
Thompson’s answers made it hard to refute an observation by Neal Katyal, the lawyer representing Harper and other individual voters affected by the redistricting, that he wasn’t sure that he’d “ever come across a theory in this Court that would invalidate more state-constitutional clauses.” Twenty-seven constitutions, he said, have their own election clauses; thirty mention the right to a secret ballot.
The second part of the problem for the petitioners was the clumsy and incoherent way that the case was structured, which appeared to frustrate even some Justices who might be inclined to support it. Chief Justice’s opening question, for example, noted that the G.O.P. state legislators, for all their talk of the legislature’s power, accept that a state governor has the power to veto election laws. “The governor is not part of the legislature.
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