Legally, The Whole Ballgame

Roger Berkowitz
On December 7th, the Supreme Court will hear arguments in the case of Moore v. Harper, a case that may very well influence the fate of the American Republic. The case has its origins in North Carolina. Last year, the North Carolina Supreme Court declared districts gerrymandered by the state legislature to be unconstitutional. North Carolina’s state legislature is appealing the decision to the United States Supreme Court. The theory behind the state legislature’s case is called the independent-state-legislature theory. It holds that the Constitution allows state legislatures unlimited power in determining who will represent the state governments in the federal government. According to this theory, the North Carolina legislature can employ gerrymandered districts without restraint; the theory also claims that state legislatures have the power to replace those certified by an election with representatives they prefer. It was this independent-state-legislature theory that was behind former President Trump’s effort to have former Vice President Pence refuse to certify the electoral college vote so that state legislatures in various states could then nominate new electors. 

Jane Mayer reviews the background of the Moore v. Harper case and speaks with J. Michael Luttig, long one of the most influential conservative judges in the United States. Luttig has joined the legal team opposing the North Carolina state legislature. Mayer writes:

A powerful new litigant has joined one of the most momentous cases slated to be heard by the Supreme Court this term. The respondents in the case of Moore v. Harper filed a brief today that included a surprising new signatory: J. Michael Luttig, who has been known for years as perhaps the most conservative Republican judge in the country. Now, though, he has joined a coalition of veteran lawyers and nonpartisan government-watchdog groups who are fighting against a far-right Republican election-law challenge—one so radical that critics say it has the potential to end American democracy as we know it.

The former judge is a surprising co-counsel to Neal Katyal, the well-known Supreme Court litigator. Katyal is a counsel of record in the case for several respondents, including Common Cause and the North Carolina League of Conservation Voters, that are opposing the far-right groups. The case is scheduled to be heard by the Court on December 7th. Luttig told me that he signed on as Katyal’s co-counsel because he regards Moore v. Harper as “without question the most significant case in the history of our nation for American democracy.” Putting it more colloquially, he said, “Legally, it’s the whole ballgame.”