The Conservative Stalwart Challenging the Far-Right Legal Theory –

That Could Subvert American Democracy

J. Michael Luttig is opposing Republican groups in one of the most momentous cases that the Supreme Court is considering this term.

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 opposing the far-right groups, including Common Cause and the North Carolina League of Conservation Voters. 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.”

As Luttig explained it, the case potentially threatens the way that American elections are decided. Moore v. Harper involves another iteration of the fringe independent-state-legislature theory, which holds that both the Elections and Electors clauses of the Constitution give state legislatures near unilateral power to manage elections. As I wrote last year in this magazine, the theory is grounded in a little-noticed concurring opinion written by three conservative Justices, including Thomas, in the Supreme Court’s Bush v. Gore decision in 2000. It was ignored for the most part until Trump’s allies tried to use it in their frantic efforts to overturn the 2020 election. Proponents of the far-right theory claim that state legislatures, which are among the country’s most disproportionately partisan bodies, have nearly unchecked power to gerrymander districts, and to choose their state’s electors in Presidential elections.


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