Rick Hasen: Moore v. Harper and its Potential Impact on Elections

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tags: Supreme Court, elections, democracy, Independent State Legislature Doctrine

A case before the U.S. Supreme Court could radically reshape presidential and congressional elections in this country. At the heart of Moore v. Harper is a disputed legal theory that claims the Constitution gives state legislatures almost unchecked power over how federal elections are run. Rick Hasen, director of UCLA Law's Safeguarding Democracy Project, joins Geoff Bennett to discuss.

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  • Geoff Bennett:

    A case before the Supreme Court, Moore v. Harper could radically reshape presidential and congressional elections in this country. At the heart of the case is a controversial and disputed legal theory that claims the U.S. Constitution gives state legislatures almost unchecked power over how federal elections are run.

    Voting Rights Advocates say that would rob state courts of the power to protect voter's rights. The conservative activists promoting this theory are among the same people who successfully pushed the U.S. Supreme Court and the federal judiciary to the right.

    Rick Hasen is the director of the UCLA Law School Safeguarding Democracy Project. And he joins us now that help us piece this together. It's good to have you with us.

    Rick Hasen, UCLA School of Law: It's great to be with you.

  • Geoff Bennett:

    So as you know, the group spearheading this effort calls itself the Honest Elections Project. But financial records and other documents lead back to Leonard Leo. He's a former adviser to Donald Trump, former executive vice president of the influential conservative legal group known as the Federalist Society. So tell us more about who he is, and his role in all of this.

  • Rick Hasen:

    Well, he really plays a central role here, working on both the legal side and the political side to advance a quite conservative political agenda. So as you said he was advising President Trump on who should be appointed to the Supreme Court. Justices Gorsuch, Kavanaugh and Barrett, the three most recent Supreme Court justices on the Republican appointed side, all came through the Federalist Society, which is an organization that he helped to lead for many years.

    But he's also got a financial side, where he's helping to back Republican candidates for the United States Senate, for the House, in state court races and state legislative races, and he just got $1.6 billion in a new trust that he's going to be able to use to further his activity. So he's both pursuing legal and political strategies that work with each other to kind of bootstrap the way towards changing American politics and law.

  • Geoff Bennett:

    And this legal strategy is known as the independent state legislature theory. This has been described as a fringe legal theory yet you have three Supreme Court justices Alito, Thomas and Gorsuch, who have seemingly signaled support for it, and Justice Kavanaugh seems very interested. So tell us more about that how this theory works.

  • Rick Hasen:

    The question posed in Moore versus Harper's whether the legislature has the power to act alone, or it has the power to act only within the confines of how the state constitution gives the legislature power. So that sounds really abstract. Let me make it very concrete here.

    The North Carolina Supreme Court said that when the North Carolina legislature drew congressional districts, it violated the state constitution. State Constitution guarantees freedom equal elections, North Carolina, partisan gerrymandering violated that the state Supreme Court said and now these Republican legislators in North Carolina who wants it to draw these gerrymandered districts or saying to the U.S. Supreme Court, the state Supreme Court doesn't even have the power to use the state constitution to go against the state legislature and federal elections. It's this free floating body the state legislature that can act regardless of other actors in the state of North Carolina.

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