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Theoretical danger


To the editor:

The doctrine of separation of powers, an essential part of our U.S. Constitution and a vital tool to protect democracy, ensures the legislative, executive and judicial branches of the U.S. government are kept distinct so as to prevent the abuse of power. The American form of the separation of powers is composed of a system of checks and balances.  

This vital protection of democracy is now being challenged and tested in the case of Moore v. Harper, which comes before the Supreme Court December 7. The case is all about a novel legal concept called the "Independent State Legislative Theory,” which would give state legislatures independent power, not subject to judicial review by state courts, to set all kinds of election rules at odds with the state constitutions, including drawing congressional maps warped by partisan gerrymandering.  

If this were decided in favor of total state legislative control, it would not only threaten democracy but would create a mountain of litigation for federal courts, the only courts that would have the power to review state laws, even those that violate the state’s own constitution.  

The concept of the Independent State Legislative Theory was first floated by the justices in the case of Bush v. Gore in 2000, when Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas brought it up in their concurring decision.  

To protect our system of checks and balances, the state courts need to have the power to review and decide on legislation which may violate the state’s own constitution. There could be catastrophic consequences if there are no checks on the actions of state legislatures except to go to federal courts to challenge unjust and unconstitutional laws.  

Even conservative judges and conservative members of the Federalist Society are arguing against the Independent State Legislative Theory. Only the extreme right-wing lawyers and legislators support the theory.  

Our democracy, protected by our system of checks and balances, could hang on the Supreme Court’s decision. Personally, I hope for a loud rejection of the theory, but I believe that Justices Thomas, Alito, Gorsuch and Kavanaugh will support this novel and dangerous legal theory.  

Michael J. Gorman


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