How the outcome of Moore v. Harper could impact federal elections

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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.

• Geoff Bennett:

  We should say Leonard Leo did not respond to our interview requests. But I did get a statement via the Federalist Society from Jason Sneed, who's the executive director of the Honest Elections Project. I'll post the entire statement online, but I'm going to read part of it to you it reads this way. Moore V. Harper is a case about one thing, road court seizing the power to rewrite the laws of our democracy behind closed doors and violation of the U.S. Constitution. The Honest Elections Project's amicus brief defends the right of all Americans to vote in elections governed by democratically enacted laws. Hopefully, the Supreme Court recognizes this case for what it is a chance to restore stability and confidence in elections by upholding the rule of law and clarifying that lawmakers, not courts and bureaucrats make the law.

  So what would be the impact, Rick, if the court rules the way that these conservative activist groups this honest elections project want it to?

• Rick Hasen:

  I think there would be two main implications. It would empower state legislatures to be able to act without any constraints, any voting rights protections when it comes to federal elections that could be pushed in state courts would also empower the United States Supreme Court, because they will ultimately be the one to determine when state courts have gone too far and somehow created a federal constitutional problem.

  But the other thing that it would do is it would create some chaos and potential for election subversion, the stealing of elections. Because this theory was relied upon by the Trump allied forces go into court after the 2020 election, arguing that state legislatures had the power to redo the state's choice of presidential electors and pick a different slate of electors turning states that Biden wants to states that Trump won.

  I don't think the Supreme Court is going to go that far in this case, but it certainly could provide the kind of decision that could be relied upon by state legislatures if they try to take the power away from voters to be able to choose who should be president in their state.

• Geoff Bennett:

  Well, a question on that point, because there are people who see this effort by conservative activists as part of a longer term strategy to hold on to power in the face of demographic shifts that aren't going their way and to effectively create permanently gerrymandered districts. Do you see it that way?

• Rick Hasen:

  I do. And, you know, I think you have to zoom out, not just look at Moore versus Harper, but look at what the Supreme Court has done. It has decimated the Voting Rights Act in cases like Shelby County versus Holder, and in last summer's burn pits case, there is the Citizens United case that allowed for big money to play a bigger influence in politics.

  And those kinds of rulings help elect more Republicans, which helped with the confirmation of more Republican supported judges that support a conservative strategy. And it's a kind of feedback loop that works here.

  You know, the ultimate goal is to not just affect voting, but to change the politics in America on issues from abortion to gun rights to the environment. And we're starting to see the fruits of that in the decisions of the Supreme Court and lower courts right now.

• Geoff Bennett:

  Rick Hasen, he's the director of the UCLA Law School's Safeguarding Democracy Project. Thanks so much for your insights.

• Rick Hasen:

  Thank you.