This week, the Supreme Court handed down a major decision relating to elections in America in the Moore v. Harper case. In a 6-3 ruling, the Court rejected the independent state legislature theory, finding that the Elections Clause does not give state legislatures exclusive power over elections, and upholding the power of judicial review in electoral cases, including redistricting decisions. In this episode of We the People, guests Judge Michael Luttig and Professor Evan Bernick join to break down the Moore decision – including why the Court decided to reject the independent state legislature theory; why conservative Justices Thomas, Alito, and Gorsuch dissented; and what this means for the future of judicial review of election laws. Host Jeffrey Rosen moderates.
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This episode was produced by Lana Ulrich, Bill Pollock, Sam Desai, and Samson Mostashari. It was engineered by David Stotz. Research was provided by Lana Ulrich, Sam Desai, Samson Mostashari, Tomas Vallejo, Connor Rust, and Yara Daraiseh.
Participants
Judge Michael Luttig served on the U.S. Court of Appeals for the Fourth Circuit for 15 years, from 1991 to 2006. He is currently counselor and special advisor to the Coca-Cola Company and its board of directors, and a trustee of the National Constitution Center. He served as co-counsel for the respondents in Moore v. Harper and has written about the case in the Atlantic.
Evan Bernick is an assistant professor of law at Northern Illinois University College of Law. He filed a brief in the case in support of the respondent in Moore v. Harper. He is the coauthor of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (with Randy E. Barnett).
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Moore v. Harper (2023)
- Judge Michael Luttig, “The Court Is Likely to Reject the Independent State Legislature Theory: And that offers hope for American democracy”, The Atlantic, April 13, 2023
- Judge Michael Luttig, “There Is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory”, The Atlantic, October 3, 2022
- J. Michael Luttig, et al, Brief for Non-State Respondents, Moore v. Harper
- Brief of Professor Evan Bernick in support of respondents in Harper v. Moore
- Check out previous We the People episodes on the Moore v. Harper case: Part 1 (March 2022) and Part 2 from (July 2022), and Part 3 (Dec. 2022)
Transcript
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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
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