How a Fringe Legal Theory Became a Threat to Democracy

Lawyers tried to use the independent-state-legislature theory to sway the outcomes of the 2000 and 2020 elections. What if it were to become the law of the land?

The Museum of the Albemarle, on the eastern shore of North Carolina, is a spacious building the color of sand and sea glass. It’s in Elizabeth City, about as far from the Research Triangle as Baltimore is from New York City, but you can get there and back in the same day if you know how to drive fast without getting pulled over. “There are a hundred counties in this state, and I’ve spent time in every one,” Sailor Jones, a democracy activist, told me this past fall, on his way to speak at the museum. He was a skillful multitasker—sipping from a huge fountain Coke, tweaking a Rihanna-heavy playlist, and taking call after call on speakerphone, all while bombing his Toyota 4Runner down an empty stretch of highway bisecting a cotton farm. Jones is forty-eight, with sandy hair and a round face; he grew up in northeastern North Carolina, a rural, working-class part of the state. “When I tell people I was born in a tobacco field, I’m only exaggerating, like, a tiny bit,” he said. He is white, but he’s from a county that is, like Elizabeth City, majority Black. “If you’re used to the powers that be either passively ignoring you or actively screwing you over, for generations, it’s natural to hear about some new nefarious thing they’re up to and think, Same shit, different day,” he said. “The challenge for us, messaging-wise, is to find a way to tell folks, You’re not wrong, but, also, this one really is different.”

“This one” was Moore v. Harper, a Supreme Court case that was set to be argued in December and resolved by the end of June. In 2021, with Tim Moore as the speaker of the North Carolina House, the majority-Republican legislature drew gerrymandered congressional maps—that is, even more egregiously gerrymandered than usual. Several voters (one of them named Becky Harper) and a handful of nonprofits (including Common Cause, where Jones works) sued to block the implementation of those maps, and the state Supreme Court ruled in their favor. The U.S. Supreme Court was asked to decide whether the legislature’s maps should stand—and, by extension, whether the state court had the power to review them at all. As with many Supreme Court cases, this is a narrow-sounding question that could have vast consequences. “It’s hard to overstate how wild it would be if this went the wrong way,” Marina Jenkins, the executive director of the National Democratic Redistricting Committee, told me.

If the Supreme Court reverses the state-court ruling, it would be a vindication of the independent-state-legislature theory, or I.S.L.T., a line of legal reasoning that scarcely existed twenty-five years ago but has since travelled from the fringes of legal discourse to the centers of power. Some advocates of the theory interpret a clause of the Constitution to mean that state legislatures can run federal elections almost however they choose—drawing maps for partisan advantage, outlawing forms of voting (such as mail-in ballots) that tend to favor one party, and challenging election results on thin procedural grounds. Even when these actions violate state constitutions, the advocates say, state courts would be powerless to stop them. (It’s this lack of oversight that would render the legislatures “independent,” though a less euphemistic word for it might be “rogue.”) A still more drastic version of the theory—not one directly at issue in the case, but one that might follow from its logic—could allow a legislature to award its state’s Electoral College votes to any Presidential candidate, even one who lost its popular vote. After the 2020 election, lawyers arguing on behalf of Donald Trump asked the Supreme Court to set aside what they called “unlawful election results” in Wisconsin, Pennsylvania, and two other states, based on unfounded claims of fraud, and let the state legislatures decide the outcome instead. Their rationale was I.S.L.T.

“Descriptively speaking, it’s not a doctrine, because there is no case law behind it,” Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, told me. “Normatively speaking, I hope it doesn’t become a doctrine, because it’s incredibly frightening.” An unusually wide range of legal scholars, from staunch originalists to loose constructionists, share this view. The list of people who have signed on to Supreme Court briefs opposing I.S.L.T. includes Steven Calabresi, a co-founder of the Federalist Society; twenty-one U.S. senators; Arnold Schwarzenegger; a group of retired four-star generals; and J. Michael Luttig, a conservative retired judge, who called Moore v. Harper “the most important case for American democracy literally since the founding of the nation.” Yet Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas all indicated, in a shadow-docket opinion last year, that they found I.S.L.T. compelling, and Brett Kavanaugh, writing separately, sounded open to being persuaded.

Jones and two colleagues got to the Elizabeth City museum around sunset. They were there to convene a town-hall-style meeting—half explainer about I.S.L.T., half pep rally—stop No. 4 on a statewide road show that they had nicknamed the Moore Tour. Jones is an inveterate people person—a hugger, a birthday rememberer, a first-name repeater. He revels in the kind of salt-of-the-earth phrases (“nary a soul,” “two shakes of a lamb’s tail”) that might sound affected coming from a carpetbagging politician, but not from him. In the parking lot, he ran into Keith Rivers, the head of the local N.A.A.C.P. “Why, Keith Rivers, as I live and breathe,” Jones said.

The audience inside the museum—two dozen already seated, a dozen more trickling in—skewed toward the civic-minded and the semiretired: churchgoing grandmothers, candidates for school board. Onstage, Jones recounted a few episodes from recent North Carolina history when the legislature had attempted a draconian overreach, protests had erupted outside the statehouse, and lawmakers had backed off. Then he led a call-and-response chant, one that the audience knew well: “When we fight together, we what?” “We win!” It made for rousing theatre, yet it was hard to tell whether he meant it literally. (As any student of history knows, the people, united, are all too often defeated.) Chris Shenton, a lawyer with the Southern Coalition for Social Justice, outlined the constitutional argument against I.S.L.T. “What the Supreme Court is being asked to do here is completely bogus,” he said. The over-all tone was roughly that of flight attendants making a pre-takeoff announcement during a rainstorm: Everything will surely be fine, but here’s what to expect in the unlikely event of an emergency.

Flight attendants use euphemistic doublespeak because, understandably, they want to avoid terms like “hijacking” and “September 11th.” For similar reasons, Jones spoke in broad terms, without directly invoking Trump or January 6th. (There were also other reasons for this, such as Common Cause’s nonpartisan status.) Even so, the implications were clear. At one point, an organizer sitting in the audience stood, using a cane, and gave an impromptu speech, urging listeners to imagine a Supreme Court opinion that enabled legislatures to rig elections at will. “There was a time when I used to think things like that couldn’t happen,” he said. “But then we had January 6th, Roe—these things canhappen. They’re happening.”

On the night of December 11, 2000, the CNN anchor Wolf Blitzer reported live from the steps of the Supreme Court. The Justices had just heard oral arguments in Bush v. Gore; the following day, they would issue their ruling. Blitzer was interviewing a Republican lawyer, a ruddy-faced young man with a slight Kermit the Frog lilt in his voice, who had clerked for Justice Anthony Kennedy at the Supreme Court, had helped draft the Starr Report that led to President Bill Clinton’s impeachment, and was now part of the legal team advising George W. Bush. The question in Bush v. Gore was whether a manual vote recount in Florida should be allowed to continue. The (Democrat-appointed-majority) Supreme Court of Florida wanted it to go on; members of the (Republican-majority) legislature did not. The lawyer argued that it should stop. “Article II of the Constitution,” he said, “delegates authority directly to the state legislatures.”

The young lawyer’s name was Brett Kavanaugh. That his stark reading of Article II aligned with his immediate partisan interest was, he insisted, a mere coincidence. “I think what we’re seeing is more of a divide over how to interpret the Constitution than, really, political differences,” he said. “What are the enduring values that are going to stand a generation from now?” He was describing what was not yet known as the independent-state-legislature theory, given that the theory was still taking shape.

A month earlier, when Election Day had ended without a clear result, the Bush team had chartered planes to Florida and set up a makeshift “nerve center” at the G.O.P. headquarters in Tallahassee. “They didn’t really have space for us, so we had all our papers laid out on the floor and stuff,” Michael Carvin, one of the lawyers, told me. Amy Coney Barrett, then a twenty-eight-year-old law associate, spent a week in the suburbs of Palm Beach doing research for the team; John Roberts, who was forty-five, flew to Tallahassee at least twice—first to advise the campaign’s lawyers and then to advise Jeb Bush, the governor. “We had the great fortune to assemble, essentially, a legal ‘dream team,’ ” Ted Cruz, another of Bush’s attorneys, later said in an Associated Press story. The group held marathon strategy sessions, seeking ways to stop the recount, which seemed to be moving in Gore’s direction. “We kept looking through the Constitution, and obviously at some point the word ‘legislature’ jumped out at us,” Carvin said.

The independent-state-legislature theory ultimately boils down to a single word: “legislature.” It appears in two relevant places in the Constitution—the Elections Clause, which pertains to how federal elections are administered, and the Electors Clause, regarding the appointment of Presidential electors. Both processes are to be directed in “each State” by “the Legislature thereof.” Benjamin Ginsberg, the Bush-Cheney campaign’s national counsel, told me that, in 2000, I.S.L.T. “was never our main focus. It was one of many things we were flinging against the wall.” John Bolton, one of the Bush campaign’s lawyers, who later served as national-security adviser under Trump, told me, “I don’t know that we fully thought through the future implications. It was more, The clock is ticking. What else can we try?” In his book “Down and Dirty: The Plot to Steal the Presidency,” from 2001, Jake Tapper attributes the I.S.L.T. eureka moment to Don Rubottom, then a mid-level Republican staffer in the Florida House, who went to work the morning after Election Day and showed his boss the Electors Clause. “My thing was, If this comes down to the wire, it looks like the Constitution says it’s our job to step in,” Rubottom told me. By December 11th, Republicans in the Florida legislature had introduced a resolution appointing a slate of electors for Bush. “The House even passed it,” Rubottom said. “But then Bush v. Gore happened.”

Laurence Tribe, a law professor emeritus at Harvard, represented Gore in a related case that went to the Supreme Court shortly before Bush v. Gore. “We knew that this was a claim that was out there, about the primacy of the legislature, but, frankly, we thought it was such a flimsy argument that none of the Justices would be tempted by it,” Tribe told me. “So, when Chief Justice Rehnquist started asking me about it during oral argument, I thought, Oh, that’s not good news.” On December 12th, the Court issued the ruling in Bush v. Gore that made Bush the President-elect. The constitutional ground was the Fourteenth Amendment, but William Rehnquist, joined by Thomas and Antonin Scalia, wrote a concurring opinion, holding that “there are additional grounds that require us” to find in Bush’s favor. The first one he mentioned was the ostensible special power of the state legislature. (He put the word “legislature” in italics, for added emphasis.)

As Rehnquist’s italics suggested, I.S.L.T. might seem like an open-and-shut case. “Pretty simple,” Carvin told me. “Legislature means legislature.” And yet, in a text as multivalent as the Constitution, a cigar is never just a cigar. Does “freedom of speech” mean only literal speech, or does it also refer to a written sign, a pornographic image, an algorithm, a campaign contribution? Does “well regulated Militia” cover only literal militias, or can it also apply to a suburban mom who wants to exercise her inalienable right to bring a Ruger to church?

Akhil Amar, a law professor at Yale, is one of the most frequently cited legal scholars in the country. When it comes to the Supreme Court, he is an ur-institutionalist who can rhapsodize at length about the courtroom’s marble friezes, and who has long counted multiple Justices as personal friends. (A few months ago, on a podcast he hosts, he referred to Samuel Alito as “a principled person” and “one of the smartest lawyers I know.”) On the question of I.S.L.T., though, he is uncharacteristically cutting. In a recent debate at the Federalist Society, he conceded that the plain-text position sounded plausible on its face, but he described his own view as “clearly the better view for anyone who’s gone to law school and who has a brain.” Last year, he and his brother Vikram, the dean of the University of Illinois College of Law, published a law-review article called “Eradicating Bush-League Arguments Root and Branch,” positing that the Framers actually intended for “legislature” to mean a state’s entire lawmaking apparatus, including the judicial and executive branches. “This kind of thing happens in the Constitution all the time,” Vikram told me. (For example, the Constitution says that “New States may be admitted by the Congress,” but the process has always involved the President, and courts have weighed in, too.) Extreme proponents of I.S.L.T. maintain that the legislature’s power over elections is “plenary”—unconstrained by state courts. But the Amar brothers contend that there is no indication that this power was meant to be so absolute. “That’s just not how it works,” Vikram said.

Unlike right-wing legal arguments against abortion rights and gun control, I.S.L.T. was not the product of a multi-decade political movement. There is no such thing as an I.S.L.T. think tank or a single-issue I.S.L.T. voter. Leah Litman, a law professor at the University of Michigan, argues that it’s hardly even a theory; she prefers to call it the “independent-state-legislature thingy,” or simply “right-wing fanfic.” Tribe, the Harvard professor, put an even finer point on it: “This wasn’t something that had an organic development in the law. It was, frankly, something that was pulled out of somebody’s butt, because they thought it was a convenient way to fulfill a short-term partisan agenda.” Despite the Justices’ repeated attestations that they are not politicians in robes, it’s hard to avoid the conclusion that I.S.L.T. is an idea tailor-made to empower state legislatures and federal courts, entities that have been disproportionately shaped by the Republican Party.

Cartoon by Michael Shaw

To the extent that there is serious scholarship buttressing I.S.L.T., much of it has been promulgated by one guy, an associate professor at Florida State University named Michael Morley. He graduated from Yale Law School in 2003, clerked for a conservative circuit-court judge, and has since attended dozens of Federalist Society events. Morley did not submit an amicus brief in Moore v. Harper; reached recently by e-mail, he wrote that he has “consistently and publicly criticized attempts to cast doubt on the outcome of the 2020 Presidential election.” A law professor who knows Morley told me, “I don’t think he’s a total wing nut. I think he found an interesting academic argument that no one else was making, and the work he did on it has been important to his career, so now he can’t fully walk away from it, but he can’t fully defend it, either.” Law journals are full of provocative thought experiments. They all seem like fun and games until someone uses one to justify an insurrection.

After Bush v. Gore, I.S.L.T. became a potential Chekhov’s gun of the American experiment—a relatively obscure one, gathering dust in a corner. It almost never came up, except maybe as a piece of bar trivia. “Between 2000 and 2020, most law students—even most law professors—would not have heard the words ‘independent’ and ‘legislature’ in the same sentence,” Evan Tsen Lee, a professor emeritus at the University of California College of the Law, San Francisco, told me. Concurring opinions generally have no legal force; and, unusually, even the Court’s opinion in Bush v. Gore included a caveat that it was not to be taken as precedent. Vikram Amar told me that, for two decades, “the Court never cited Bush v. Gore, so most of us thought, This is behind us. Why beat up the conservatives for something they seem to recognize was wrong?”

In 2020, after Donald Trump lost the Presidential election, he ordered a team of lawyers to help him un-lose it. The most public-facing of them—Rudolph Giuliani, Sidney Powell—came from politics, or from undistinguished careers in private practice. For a few darkly comic weeks, they flailed on live TV, inviting reporters to a landscaping company’s garage and vowing to “release the Kraken.” “I know crimes,” Giuliani said during a televised press conference, hair dye streaking down his face. “I can smell ’em.” (“This sounds SO FUCKING CRAZY,” Raj Shah, who had left the Trump White House for Fox News, texted while watching Giuliani, according to communications revealed in Dominion Voting Systems’ lawsuit against Fox. “He objectively looks like he was a dead person voting 2 weeks ago.”)

A lesser-known but more formidable member of Trump’s legal team was John Eastman, a former law-school dean, a fellow at the right-wing think tank the Claremont Institute, and a former clerk and longtime friend of Justice Clarence Thomas. If Giuliani and Powell looked like made-for-cable-TV lawyers, then Eastman, with half-rimmed glasses and silver hair, seemed made for the seminar room. While the TV lawyers tantrummed, and Trump worked the phones, Eastman looked for a constitutional loophole. Cleta Mitchell, another Trump lawyer, e-mailed Eastman after the election, writing, “A movement is stirring. But needs constitutional support.” She asked, “What would you think of producing a legal memo outlining the constitutional role of state legislators in designating electors? . . . Am I crazy?”

Eastman didn’t think so. After the 2000 election, he had testified before the Florida legislature. (“We went on a mission yesterday to find somebody who could be sort of qualified as a, quote, expert, if you will,” a state senator said, introducing him. “He’s come all the way from California—actually overnight.”) Eastman told the legislators that they didn’t have to wait for permission from the courts: the Constitution gave them the power, which “knows no other appeal,” to determine how the Presidential electors should be allocated. If it had been up to him, that election would have been decided unilaterally by a state legislature.

In 2020, Eastman made the same argument. Shortly after the election was called for Joe Biden, Eastman went to Philadelphia, where a group of Trump aides asked him to advise them on post-election strategy; the meeting lasted only fifteen minutes, but that was enough for him to catch COVID. A few days later, he spoke by video at a Federalist Society conference. (The theme was “The Rule of Law and the Current Crisis”; the keynote speaker was Samuel Alito.) The following month, while spending Christmas Eve with family in Texas, he wrote a memo labelled “Privileged and Confidential: January 6 scenario.” He then wrote a more detailed memo asserting that “the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors.” Like Rehnquist, he added the italics.

Kenneth Chesebro, another member of Trump’s legal team, maintained that legislators in seven swing states could simply pretend that Trump had won, and submit slates of fake electors to that effect. (“Fake” is actually the word that one lawyer used in his e-mails, before catching himself and writing, “ ‘Alternative’ votes is probably a better term than ‘fake’ votes,” followed by a smiley face.) In a historical coincidence, Chesebro had worked as a research assistant for Laurence Tribe after the 2000 election, when they had discussed the Electors Clause at length. “He was a bit of a hanger-on, to be honest, and he didn’t seem to have much of a moral compass,” Tribe told me. “I’d hate to think that those conversations inadvertently planted the seed that became the evil tree of I.S.L.T.” (A lawyer for Chesebro later said that he was merely advising the Trump campaign to keep “its options open.”) In 2022, a district-court judge referred to the Trump team’s post-election machinations as “a coup in search of a legal theory.” To the extent that there was such a theory, it was the independent-state-legislature theory.

On January 6th, shortly before Trump spoke at the Ellipse and encouraged his supporters to march to the Capitol, Eastman took the stage wearing a felt fedora. He gave a fiery speech, imploring Vice-President Mike Pence to delay certifying the election. “This is bigger than President Trump,” he said. “It is the very essence of our republican form of government.” Meanwhile, Luttig, the conservative retired judge, privately lobbied against Eastman, who had once been his clerk. “I told the Vice-President’s team, ‘I know that John is very smart, but I have absolutely no idea what he’s thinking on this one,’ ” Luttig told me. “If the Vice-President had done what John had asked him to do—well, I’ve spent the last two years contemplating what would have happened, and I think it would have plunged the country into a paralyzing constitutional crisis.” In the end, of course, Pence refused, and the election was certified for Biden. In Moore v. Harper, only one legal academic filed an amicus brief in support of the North Carolina legislature’s position on I.S.L.T.: John Eastman.

Recently, I reached Eastman by phone. He’s originally from Nebraska, and he speaks with a mild high-plains cadence—except when he gets worked up, which happened a few times. “Most of the legal academy doesn’t take seriously the original understanding of the Constitution,” he told me, denouncing not only leftists but also most conservatives, including “the anti-Trump crowd, which I don’t consider to be Republican lawyers anymore.” By refusing to delay the certification, Pence had “accepted the view that the role that the Constitution assigned to him was merely that of a potted plant.” Eastman still believes that Biden’s victory was wrongly certified, and that many recent elections have likely been marred by voter fraud. (He even suggested that the dimpled chads in 2000 were evidence of intentional malfeasance, which was a new one on me.) Eastman’s role in the attempts to overturn the 2020 election had already landed him in a good deal of trouble: he’d been brought in for questioning by the January 6th committee, had his phone seized by the F.B.I., and was in danger of being expelled from the State Bar of California. Still, he claimed not to understand what all the fuss was about. Until recently, he said, “I thought everybody agreed that the legislatures got to do this.”

A few years ago, many pundits might have considered it unthinkable that the Supreme Court would give a hearing to a theory such as I.S.L.T. But recent events have changed the consensus view of what’s possible. Two days after the 2020 election, Ginni Thomas, Clarence Thomas’s wife, texted Trump’s chief of staff a meme asserting that the “Biden crime family & ballot fraud co-conspirators . . . will be living in barges off GITMO.” The following summer, during a reunion of Justice Thomas and his former clerks at a resort, golf course, and shooting club in West Virginia, Ginni posed for a photo, according to the Washington Post. She was flashing a double thumbs-up and standing next to a grinning John Eastman. On the merits, I.S.L.T. may deserve to be rebuked in a lacerating 9–0 decision. But “the merits” don’t decide what the law is. Judges do.

Sailor Jones grew up in Warren County, one of the poorest counties in North Carolina. In the early eighties, when he was in elementary school, the governor, a Democrat, advanced a plan allowing tons of carcinogenic chemicals to be dumped in a nearby soybean field. A group of local activists engaged in a six-week civil-disobedience campaign, lying in the roads to block the dump trucks. Warren County became known as the birthplace of the environmental-justice movement, but the campaign failed—the protesters were arrested and the field became a toxic landfill. Jones spent his summer breaks curing tobacco. “This was the era of ‘Sure, honey, segregation is over,’ but everyone knows it ain’t really over,” he said. Later, in the fights for gay rights, trans rights, and voting rights, the same lesson would be reinforced: there’s what the rules say, on paper, and then there’s what the people in power can get away with.

Common Cause has brought dozens of major lawsuits, several of which have gone before the Supreme Court, but most of its work is more incremental and lower-profile: election hotlines, pamphlets about ranked-choice voting. It was founded in 1970 by a liberal Republican fed up with the Nixon Administration’s self-dealing; its objective was bipartisan democracy reform, which then seemed achievable. (As Rick Perlstein recounts in his book “Reaganland,” both parties supported a comprehensive voting-rights package in 1977, until it was scuttled by members of the New Right, including Ronald Reagan.) Common Cause is now perceived as progressive, which says less about a change in its priorities than about the major parties’ evolving views on universal suffrage.

American activists of all stripes, paraphrasing Justice Louis Brandeis, have long referred to the states as laboratories of democracy. But the adage has started to reverse itself: in the past two years alone, there has been one book called “Laboratories Against Democracy” and another called “Laboratories of Autocracy.” North Carolina is often cited as a paradigmatic case. It’s a purple state—Barack Obama won it in 2008 and lost it in 2012—but in many recent years Republicans have enjoyed super-majorities in the legislature, and they have used this power to grant themselves more power. After the Republican Pat McCrory was elected governor, in 2012, the state passed what voting-rights advocates called the monster election law—a combination of voter-I.D. requirements, reduced access to polling sites, and other obstacles that made it, at the time, among the most suppressive laws of its kind in the country. (A court later overturned the law, ruling that it would “target African Americans with almost surgical precision.”)

When a referendum outlawing same-sex marriage was on the ballot, in 2012, Jones protested by running across the state, or most of it, “which is even more impressive once you understand how bad I am at running.” In 2016, North Carolina became the first state to pass a so-called bathroom bill, forcing people to conform to the biological sex on their birth certificate. Both these fights were personal for Jones, who married a woman and later came out as a trans man. “Attacking queer folks seems like good politics if you represent an extreme partisan district where you’re insulated from public opinion,” Jones told me. These days, he said, whenever he visits the North Carolina statehouse, “I make it a point to stop by the men’s room, even if it’s just to wash my hands.”

In 2016, the anti-democratic maneuvers grew more brazen. McCrory ran for reëlection and narrowly lost, but he didn’t concede to his Democratic successor, Roy Cooper, for nearly a month, citing “serious concerns of potential voter fraud.” This received less attention than it might have, given the Presidential election that happened at the same time. (McCrory recently told me that he now believes Cooper’s victory was legitimate, although he mentioned that the election had included some “bad things” and “unfortunate coincidences,” including faulty Dominion voting machines.) During McCrory’s remaining time in office, the legislature convened for a special session and stripped the incoming governor of a wide range of powers. “Partisanship, hardball politics—that we were familiar with,” Mike Woodard, a Democratic state senator, told me. “But not just pulling the rug out like that.”

That year, Republicans in North Carolina won a narrow majority of the vote but ended up with ten of the thirteen congressional seats. During a public hearing, David Lewis, the head of the state’s House redistricting committee, confessed that his committee had created a map with ten Republican districts and three Democratic districts “because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats.” Lewis had not been caught on a hot mike or injected with truth serum. He and his colleagues hoped to avoid being busted for racial gerrymandering, which violates the Voting Rights Act, by admitting to partisan gerrymandering, which doesn’t. (Never mind that in North Carolina, as in many states, partisan gerrymandering and racial gerrymandering achieve essentially the same thing.) Common Cause sued, and the case went to the Supreme Court. Justice Roberts, writing for the majority, acknowledged that partisan gerrymandering is “incompatible with democratic principles” but decided to let it slide anyway, reasoning that the matter was better handled by other entities, including state courts.

In 2020, David Lewis retired, after pleading guilty to making a false statement to a bank. Tim Moore, the speaker of the House, oversaw a new, more extreme round of gerrymandering. Common Cause sued once again in state court, the case that would become Moore v. Harper. “The Supreme Court had just told us, If you don’t like the way your state legislature’s treating you, take it up with state courts,” Jones said. “So that’s exactly what we did.” In February, 2022, the North Carolina Supreme Court ruled that the gerrymandered maps violated the state constitution. Normally, this would have been the end of it. But Moore appealed, on the basis of I.S.L.T., and, shockingly, that June, the U.S. Supreme Court agreed to take the case.

The conventional wisdom was that the three liberal Justices would almost certainly reject I.S.L.T., and the three most conservative Justices almost certainly would not. This left the three Justices who currently pass for moderates—the three who worked for the Bush legal team in 2000—as the likely swing votes. Not long ago, I met up with Chris Shenton and his colleagues at the Southern Coalition for Social Justice, in an office park on the outskirts of Durham, as they prepared potential arguments in Moore v. Harper. “There are a couple of ways to split the baby on this one, but not many,” Shenton told me. “You either think the whole concept of I.S.L.T. is coherent or you don’t.” In 2015, in a case called Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court had rejected a version of I.S.L.T. Another coalition lawyer, Hilary Harris Klein, said that it would be highly unusual for the Court to reverse such a recent major precedent.

The North Carolina Capitol, in Raleigh, was built in the familiarly grand Greek Revival style. The State Legislative Building, a block away and fashioned out of concrete in the sixties, looks more like a formerly upscale airport hotel. One day last fall, I visited with two Common Cause employees. We ran into Woodard, the Democratic senator, who was in the middle of a garrulous conversation with a Republican colleague. “I’m a guy who’s willing to work with everyone, who gets along personally with a lot of folks,” Woodard told me. But in his office, with the door closed, he added, “When it comes to a lot of fundamental things—voting rights, gerrymandering—I honestly don’t trust them.” One of the many framed trinkets on his walls was a quote by Belva Lockwood, an uplifting sentiment that unfortunately has not been borne out by history: “Reforms are slow, but they never go backward.”

The Common Cause staffers were there to meet with Pricey Harrison, a Democratic state legislator with Elizabeth Warren energy. They sat in an indoor courtyard, next to a lacklustre fountain, looking over the text of a draft bill that would take the ability to gerrymander away from the legislature, setting up an independent redistricting commission instead. Harrison had introduced the bill, with minor tweaks, in several legislative sessions, but Tim Moore had never allowed it to come up for a vote. “If Moore v. Harper goes the wrong way,” she said, “maybe this whole thing becomes futile.” I asked Harrison what it was like to work with colleagues who seemed ambivalent, at best, about the basic ground rules of democracy. “I’m an old-fashioned Southerner, so I don’t like conflict,” she said. But she mentioned, almost as an aside, that I might find it “interesting” to meet a freshman legislator named Donnie Loftis. I didn’t understand what she was driving at until, just before we knocked on his door, one of the Common Cause employees spelled it out for me: Loftis had proudly participated in the break-in at the Capitol on January 6th. (“I got gassed three times and was at the entrance when they breached the door,” he posted on Facebook.)

Loftis’s legislative assistant, who is also his wife, invited us in. Loftis wore Oakley glasses and a tie with a tie chain; on his wall was a drawing of a bald eagle fighting a snake and a photo of himself as a younger man standing next to Jesse Helms, who has been called one of the most racist U.S. senators in modern history. I asked Loftis what he thought about the peaceful transfer of power. “We have been known for that for many years,” he began. “And this last transfer of power was,” he added, a bit haltingly, “different. At the same time, it’s, like, What is the real truth? Who do you believe?” Some politicians, he added, “work on the premise ‘I didn’t lie to you, I just didn’t tell you the whole truth.’ Which I struggle with. I’d much rather you blatantly lie to me than try to deceive me in a roundabout way.”

One night, while driving home from a stop on the Moore Tour, Jones asked Shenton, “Is there any part of you that thinks we can win?” They had pulled off the highway and were waiting in a drive-through line for fried-chicken sandwiches. “I think we can,” Shenton said, though he added, “I wouldn’t put money on it.” Legal formalists believe that the law is bounded by invisible normative guardrails; legal realists believe that the law is whatever judges decide to do. When the Supreme Court first took a challenge to Obamacare, in 2012, many pundits were confident that the law would be upheld easily, maybe unanimously. But, Shenton said, “by the time the case was argued, it was a nail-biter.” The strength of the underlying arguments had not changed. What had changed was public sentiment, media chatter, and partisan dynamics—the various extralegal inputs that shape what the Justices think, and, presumably, what they think they can get away with.

The sandwiches came, and Jones drove in silence for a while. Gino Nuzzolillo, a colleague who was sitting shotgun, compared Moore v. Harper to Dobbs v. Jackson Women’s Health Organization, the case that overturned the federal right to abortion. “I know that there were people just like us, on the ground, who were screaming about Dobbs around this time last year,” he said. “And yet, for most people, until that opinion got leaked, they did not want to think it could actually happen.” Unlike abortion rights, democracy isn’t the sort of thing that can be eradicated overnight. Still, it was startling to think of democracy as just another tenuous compromise, one whose terms can always be renegotiated. Often, when groups like Common Cause organize rallies, the goal is to hold elected officials accountable. This time, their goal was to impose accountability on nine unelected Justices with life tenure, individuals whose relationship to public opinion seems to range from polite remove to open hostility. Jones said, “If I’m being honest, this one is a bit more of a Hail Mary.”

Talk of the looming demise of democracy doesn’t have to be wrong for it to have diminishing returns. The doomsayers may be directionally right but off by a few degrees—calculating the end to be slightly nigher than it is—or they may not be wrong at all. Still, the chorus of clanging alarm bells can have a habituating effect. “It’s the end of the republic as we know it” may start to sound like “Act now while supplies last”—easy to shunt into the mental equivalent of a spam folder.

And yet we know from comparative political science that, when twenty-first-century democracies do collapse, they don’t collapse all at once. The process is usually more gradual, like a hole in the ozone layer that widens, imperceptibly at first, setting off feedback loops that become harder to contain. By the time there’s consensus that this is what’s happening, it may be too late to stop it.

In 2015, in The Journal of Democracy, the political scientist Javier Corrales used the term “autocratic legalism.” Crude totalitarian regimes might get their way through emergency powers or sweeping purges, but more sophisticated regimes can weaken checks on their power by bloodlessly manipulating the levers of the bureaucracy, thus retaining some plausible deniability. Corrales focussed on the Chávez government, in Venezuela, and its selective “use, abuse, and non-use of the rule of law.” Instead of shutting down a critical media outlet, for example, the regime might burden it with specious investigations. Kim Lane Scheppele, who teaches international affairs at Princeton, has identified similar methods in Hungary, Poland, Turkey, and elsewhere. President Recep Tayyip Erdoğan of Turkey has not banned opposition parties, but, prior to the most recent election, his party pushed through laws that diluted its rivals’ electoral power. Benjamin Netanyahu, the Prime Minister of Israel, has proposed reforms that would give his governing coalition unprecedented control over the judiciary, while trying to maintain the appearance of legitimacy. “In all the democracies, including the United States, elected officials are those who choose judges,” Netanyahu said this year, defending his position. “Is the United States not a democracy?”

For understandable reasons, the Supreme Court cases that get front-page coverage tend to bear on culture-war issues. But the most direct path to power, almost by definition, is to alter the rules of the game. This can take the form of wonky policy tweaks that the average voter might not even notice, yet the cumulative effect may be the difference between a democracy in substance and a democracy in name only. “You don’t need to physically block voters from entering the polls,” Scheppele said. “A lot of that can happen invisibly.” Last year, Mark Lemley, a Stanford Law professor, published an article called “The Imperial Supreme Court,” warning, “If the Court decides next Term that we don’t have a right to elect the winners of elections, as it seems poised to do, it may dismantle the political apparatus of our country for good.” If the Supreme Court does not issue a calamitous opinion in Moore, some cooler-headed pundits will surely take this as a sign that the invisible guardrails have held once again, chiding those who raised a false alarm. And yet averting a disaster once, or a hundred times, does not mean that the disaster was not worth worrying about in the first place. Even if the apparatus of democracy is not dismantled this year, or next year, it’s worth reckoning with how easily it could be.

It is debatable when American democracy started to backslide, or to what extent, but there is no longer any objective reason, except for nostalgia or the stale fumes of American exceptionalism, to exclude the U.S. from consideration. Last year, Tim Michels, a Republican candidate for governor of Wisconsin, pledged to do away with the state’s bipartisan elections commission. He also assured voters that, once he was in office, “Republicans will never lose another election in Wisconsin.” In April, a Montana lawmaker named Zooey Zephyr argued against a bill restricting gender-affirming surgery for minors, implying that anyone who voted for the bill would have “blood on your hands.” Her colleagues responded by banning her from the House floor for the rest of the legislative session. Daniel Kelly, a former judge who was a key adviser in Donald Trump’s fake-elector scheme in Wisconsin, recently ran for the state Supreme Court. (A spokesperson for Kelly later said that he now “believes Joe Biden is the duly elected President.”) He and Michels both lost, but only because it’s not possible to gerrymander a statewide election: if the same vote patterns had been cast in a legislative election, the G.O.P. probably would have won. The Republican super-majority in the Wisconsin state legislature has signalled that it is open to impeaching the judge who beat Kelly; it just hasn’t settled on a reason for it yet.

J. Michael Luttig, a conservative retired judge, has called Moore v. Harper “the most important case for American democracy literally since the founding of the nation.”

In “How to Save a Constitutional Democracy,” the law professors Tom Ginsburg and Aziz Huq argue that some instances of democratic decay are organized around a charismatic leader, but that the process can also happen in the absence of a strongman or after a strongman leaves the stage. They call the latter dynamic “partisan degradation,” in which the relevant actor is a party, not a person. “There’s often this temptation to believe that as soon as you remove one major violator of norms—Trump, in the American context—the deep structural forces putting democracy under strain will dissipate,” Huq told me. “It’s wishful thinking.” He mentioned Tennessee, where Republican legislators recently ejected two of their fellow-lawmakers from office for the crime of chanting protest slogans—a move that was more or less unprecedented, until it wasn’t. “Once you get locked into that dynamic,” he said, “it’s not always obvious how, or whether, you can get out.”

Some signs of democratic backsliding are relatively overt; others are more ambiguous. In November, a couple of weeks before the midterm elections, I drove to a convention-center ballroom in Hickory, in western North Carolina, for a bipartisan forum designed to reassure the public, county by county, that the electoral process could be trusted. The audience raised several stubborn narratives about voter fraud, familiar from Trump rallies and right-wing memes, and a series of election officials took turns patiently demystifying the process. Still, at least a few listeners were able to remain mystified. A local I.T. official started a sentence “When it comes to cybersecurity . . .” at which point he was interrupted by a heckler, who shouted, “No such thing as cybersecurity! Anything that’s hooked up to the Internet can be hacked.” The I.T. official did his best to explain that North Carolina’s voting machines were not—in fact, could not be—connected to the Internet, but this seemed to have no effect. Afterward, in the parking lot, I approached the heckler, identified myself as a journalist, and asked if anything he’d heard had changed his mind. “Go pound sand,” he said. He got in his car and slammed the door. Then, perhaps worried that he had been unclear, he rolled down his window, shouted, “Go fuck yourself,” and peeled off.

I spent Election Day in Alamance County, where Sailor Jones lives. The county is politically diverse, but its longtime sheriff, Terry Johnson, is something like a small-town Joe Arpaio. In the summer of 2020, Johnson worked security at a rally in support of a Confederate monument, wearing a pink polo with a sheriff’s star and no mask. A protester asked him why he was breaking the Governor’s mask mandate. He chuckled and said, “Ma’am, why are you breaking the law? We know you’re with Antifa.”

In this election, Johnson was running for a fifth term, on a MAGA platform. On Election Day, I saw him in the parking lot of a polling place, wearing his pink sheriff’s-department polo. Parked in front of the entrance was a military jeep bearing a P.O.W. flag and four signs that read “RE-ELECT TERRY JOHNSON.” (A man standing next to Johnson, wearing a sheriff’s-department jacket, said that it was his jeep.) A rumor was going around, on Facebook and elsewhere, that Johnson’s name had been left off the ballot. Election officials had already taken the unusual step of opening two ballots, live on camera, to prove that this wasn’t the case. I asked Johnson what he made of the rumor. “I trust the integrity of the Alamance County Board of Elections,” he said, as if reading from an invisible teleprompter. That afternoon, I saw that the rumor had been amplified, if not started, by the official Facebook pages of the Alamance Republican Party and the Re-Elect Terry Johnson campaign.

According to the State Board of Elections, it is not permissible for “law enforcement to be stationed at a voting place.” Was Johnson canvassing voters while in uniform, or subtly attempting to intimidate them, or merely standing in view of them? There’s what the rules say, on paper, and then there’s what the people in power can get away with. It would certainly be a stretch to say that democracy is dead in Alamance County—Johnson seemed authentically popular, and he won handily. Even so, the day after Election Day, Sailor Jones invited two of his colleagues to his house to lead a workshop on ballot curing. None of their most vivid fears had come to pass—no clear instances of voter suppression or intimidation. Still, Jones said, “if we thought our democracy was operating at a hundred per cent, we would be taking the day off.”

As the oral arguments in Moore v. Harper began, on the morning of December 7th, it started to look as if the diehard proponents of I.S.L.T. would be disappointed. “Your position seems to go further than Chief Justice Rehnquist’s position in Bush v. Gore,” Justice Kavanaugh said, skeptically, to the lawyer representing Tim Moore. Outside, in front of the courthouse steps, Common Cause hosted a rally in a cold drizzle, with a go-go marching band. “This does not seem to be the nightmare time line,” Jones said.

Leah Litman, of the University of Michigan, is a host of “Strict Scrutiny,” a podcast about the Supreme Court, on which she often jokes that the current conservative majority’s approach can be summarized as “No law, just vibes.” Apparently, between June and December, there had been a vibe shift. It’s possible that the three swing Justices had simply had time to reflect on the hundreds of pages of legal briefs, Kate Shaw, a Cardozo Law School professor and one of the other hosts, told me. “It’s also possible that they noticed the enormous public outcry”—that they may have been swayed by any number of blog posts, radio segments, and perhaps even humble protest efforts like the Moore Tour.

Another thing that happened between June and December was the midterm election, in which the Republican Party had not met expectations. One theory was that the Court had overplayed its hand with Dobbs. Many full-throated election-denialist candidates, such as Kari Lake and Doug Mastriano, had also lost, which contributed to a burgeoning consensus that insurrectionism was not good politics. “If you’re Roberts or Kavanaugh, you would have to be chastened by that,” Michael Liroff, who co-hosts a staunchly legal-realist podcast called “5–4,” told me. It’s possible that Moore will be decided narrowly, or that it will end in a 3–3–3 split that doesn’t fully resolve the question. Some might greet this as a victory, but Liroff wasn’t so sure. “So a third of the Court is endorsing the logic of full-on insurrection,” he said, “and that’s the scenario that’s supposed to make me feel like everything’s fine?”

In last year’s midterms, the North Carolina Supreme Court flipped from majority-Democrat to majority-Republican. This year, in another highly unusual move, the court reheard the case underlying Moore v. Harper, and, without citing any new evidence, decided that the gerrymandered maps it had just declared unconstitutional were now constitutional. Some pundits anticipated that the U.S. Supreme Court would throw out the case. As of this writing, that hasn’t happened, but whatever action the Court takes this month may end up frustrating everyone, including the activists and scholars who hoped that the Court would dispense with I.S.L.T. once and for all. Vikram Amar, the University of Illinois professor, worried that, “if I.S.L.T. is allowed to stay alive and keep evolving,” it could lead to disastrous outcomes, including the possibility of a stolen Presidential election. “If you’re going to tell me that in America the norms are so strong that it’s impossible to have one or two rogue legislatures, I’d have to say you’ve been asleep,” he said. “I might have agreed with that in 2000, or 2015, but there’s no way I could agree with it now.”

I.S.L.T. is by no means the only Chekhov’s gun. There’s the Electoral Count Act of 1887, which, even after recent reforms, still contains potential loopholes; the prospect of “faithless electors” voting unpredictably in the Electoral College; and other scenarios that have been sketched out on obscure legal blogs or that have not yet been invented. As long as there are politicians determined to erode democracy, there will be plausible means by which they can try. In “How to Save a Constitutional Democracy,” Ginsburg and Huq write of the “majestic vagueness” of the Constitution—a salutary tool in the hands of those who intend to expand democracy, a dangerous weapon in the hands of those who want to undermine it. “The document is sufficiently old and terse that you can, if you really want to, make a credible-sounding argument for almost anything,” Huq said. “What has stopped this from descending into total farce, so far, is a shared political and legal culture, a sense of propriety and self-enforced boundaries. The happy story you can tell about that is that it has held back the tide for as long as it has. The less happy story is that there is no way to guarantee that it will last.” ♦

https://www.newyorker.com/magazine/2023/06/12/how-a-fringe-legal-theory-became-a-threat-to-democracy