What is the most important point to take away from Moore v Harper?
What is the likelihood of additional attempts to use ISLT if it is struck down by the Supreme Court in a similar manner to the cases that led to Roe v Wade being overturned?
Additionally, what has been your favorite case you’ve worked on and or the most significant case?

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Yeah, absolutely--I always think that the way we normally think of combating conspiracy theories ("just beat people over the head with facts and truth") doesn't work that well because what conspiracy theories are doing is solving a psychological need first and foremost. So the better way to combat them, I think, is to figure out what that psychological need is, and address that--it's sort of like a methadone treatment, where you kill the need for the drug, and then they abandon the drug and the conspiracy theory on their own.

What fringe beliefs used to be commonplace in America but are no longer believed?

This is a great question--because The New Chronology is popular in Russia particularly, and appeals to a specific set of nationalist ideas about the Russian empire, it maybe makes sense that the conspiracy theory would highlight a belief that ethnic Russians--blond, blue-eyed Slavs--were at the heart of all civilization. The Russian Empire is a bit different, historically, from others that we may be more familiar with (say, the British or American empires), because the idea of a Russian empire is inherently multi-ethnic in a way that those in the west aren't. While the British conceived of their empire as one where they were ethnically and racially superior to those they colonized and subjugated, the Russian Empire was always deliberately multi-ethnic, with ethnic Russians just a kind of "first among equals," so to speak (assume that a lot of what I'm saying here is in scare quotes--I'm doing my best to relay what I believe others think and obviously am not endorsing any particular racist or colonial logic myself!). The New Chronology, which is more explicitly racist in its positing that ethnic Russians are at the heart of all culture and civilization, is thus a break from the traditional ways that the Russian Empire has been conceived, and is what happens when you have an empire (in this case, the Soviet Union) fall apart and leave behind only wreckage, with people clinging to increasingly extreme and problematic theories to make sense of what's happening.

Thanks for the reply. There seems to be a good deal of overlap in the psychology of conspiracy theories and cults.

You've mentioned in a lot of responses how things justices care about- history, text, originalism, etc-means there's a mountain of evidence that ISLT is wrong. But do you have any evidence that the Supreme Court actually cares about any of those things and instead uses those as a cover to be partisan hacks? And that they wouldn't hesitate to throw those things out the window to continue to be partisan hacks?

Oh man, I feel like that's asking someone the best way to rob a bank or something... But it's not a bad question--I think there are different kinds of believers in conspiracy theories, but all theories are satisfying some basic psychological need, something that makes the believers feel good about themselves or lets them feel safe or comforted about their worldview, or lets them indulge in problematic views that are otherwise not acceptable in mainstream culture. So I'd work backwards from that? Like what psychological need do you want to tap into? From there, you'd want something that could easily accommodate conflicting evidence, so even things that "disproved" your theory could in fact be made to "prove" it. Lastly, you need something that holds out vague promises but never actually needs to deliver on those promises... like a Nostradamus prediction or an astrology reading or a Q drop, something that allows people to believe it's true even if you don't ever actually prove anything....

>the world was originally dominated by blond, blue-eyed Slavs.

Why this group in particular?

If you were to make a recipe for the perfect conspiracy theory (widest adoption) what 'ingredients' would you use?

Thank you for the excellent response.

This is far from a done-deal for the ISLT. As Eliza and Tom mentioned in other replies, all of the stuff that this Supreme Court purports to care about–history, originalism, text–all cut sharply against the ISLT. Here’s one data point: Tons of leading academic historians have come out against the ISLT; not a single historian has tried to defend the theory. Combine that with all of the other reasons to reject the theory–e.g., it’s undemocratic and dangerous–and the anti-ISLT side has a very strong hand.

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--Ethan

And yet I got a detailed and topical response because people can read and Interpret common usage of the language we have around our political system.

Go touch some grass dude.

Election officials should count every vote, even if that means we may not know the results until a few days after Election Day. Voters knowing that they will cast ballots that count should give them confidence in the results. - Eliza

To start, it’s important to remember that the independent state legislature theory relates to federal elections–i.e., elections for congress, senate, and the presidency.

If the Supreme Court rules for the gerrymanderers in Moore v. Harper, it would be a huge blow to efforts to stop partisan gerrymandering in congressional elections. A few years back, the Supreme Court (in a terrible decision) ruled that federal courts aren’t allowed to stop partisan gerrymandering, but the Court–unanimously!--promised that state courts could step in to fill the void. If the Supreme Court were to turn around and announce that, actually, state courts can’t get involved either, that would mean that state legislatures can gerrymander congressional maps to benefit their party–and no court would be able to stop them. That’s a disaster for fair elections.

Other potential consequences of the independent state legislature theory: state constitutional provisions that protect your right to vote–like those that guarantee your right to cast an absentee ballot, those that establish automatic voter registration, and even long-standing provisions that guarantee fair elections or equal protection of the law–could all become inapplicable to federal elections.

At the same time, because the theory only applies to federal elections, that could mean that these provisions would still apply to state elections, creating a “two-track” election system, where different rules apply to state and federal elections, that would be confusing for voters and election administrators alike.

This is just some of the chaos that the ISLT will introduce into our elections system, and it’s pretty frightening.

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--Ethan

Respectfully, that really just sort of kicks the can down the road. (That's probably on me; I could have worded it better.) What is it that made these Justices suddenly so open to promoting this idea in their opinions? Have the Justices changed their views on it (or at least found it suddenly more 'acceptable' to start discussing it openly), or was it baked into the nomination of people like Alito, Thomas and Scalia (and now the new batch of Trump's nominated Justices)?

I guess what I'm really asking is how far back this goes. It's easy to view the modern GOP as just throwing any old shit at the wall to see what sticks, as long as it keeps them in power -- and I definitely think there's a strong case to be made for that -- but it also kind of feels like it's been seeded for a long time, and we're now seeing the direct result of that because the Trump administration fluked/scammed their way into three SCOTUS seats in four years. (I guess the parallel would be with the overturning of of Roe v. Wade, where it seemed to fall apart very quickly but there's also evidence that the GOP have been setting up their little chess pieces for a long time through things like the Federalist Society.)

When we're looking for a cause for this -- and with the understanding that situations are nuanced and events are very rarely caused by only one thing -- is it a 'modern' (post-2016) issue, or do we need to be looking a lot further back into history to get the context for this?

Until I gain the power to read minds, I won’t make predictions!

That said, any Supreme Court Justice who tries to write a credible opinion supporting the ISLT is going to struggle mightily to deliver. Under any metric a Justice would use to figure out the right answer in this case–original public meaning, constitutional text, structure, historical practice, precedent, policy, etc.--the answer is: “The ISLT is wrong.”

The ISLT has been able to motor along up to this point because the Court’s been fielding it on its emergency appeals docket (the shadow docket), where there’s basically no context for its decision-making (few briefs, no argument, etc.) and there’s little to no public scrutiny of what they’re up to.

The game’s different now: The Court’s gotten thousands of pages of briefs dropped on it, covering every conceivable angle of the issue. (We summarized them all here: https://www.brennancenter.org/our-work/court-cases/annotated-guide-amicus-briefs-moore-v-harper.)) Folks are paying attention to it now. And the Court has experienced significant blowback for its recent opinions on abortion rights and gun control. All these things will put real limits on the Court's room to go the wrong way here.

In short, this case is a winnable one for the anti-ISLT side. - Tom

Then going by their actions so far, this supreme court is almost guaranteed to rule in favor of ISLT. What recourse do we have at that point?

Hello. Do you think that with some election results coming many days after the election is over will give voters less confidence about the elections?

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The gerrymanderers who are asking SCOTUS to embrace the ISLT rely mainly on the fact that when the Constitution assigns the power to regulate federal elections, it gives that power to the “legislatures” of each state (subject to the power of Congress to override these rules). Seizing on the word “legislature,” proponents of the theory insist that state legislatures don’t just get to make the rules, but that they can ignore their state constitutions when doing so!

The problems with the ISLT are endless. For one thing, American elections have never been run this way. It’s a totally made-up theory. Since the founding era, state legislatures have regulated federal elections, subject to all the normal checks and balances that are the hallmark of our democracy–with governors having the chance to veto bad laws, with state courts having the chance to strike down unconstitutional laws, and with election officials being tasked with administering them. The ISLT totally ignores that history.

Other problems with the ISLT: It violates the basic norms and assumptions about how government should work at the time the Constitution was written. It conflicts with hundreds of years of Supreme Court precedent. It defies common sense (how could a state legislature make laws that violate the very state constitution that created it?) It disregards the text of the Constitution (the Constitution gives lots of power to Congress, for example, but no one would ever argue that Congress is free to make unconstitutional laws!) And it’s a recipe for election chaos.

It’s not really a close call, which is why constitutional experts–on both sides of the aisle–have called on the Supreme Court to reject this dangerous theory.

-Ethan

In your opinion, how fucked is the Supreme Court?

Are there legitimate criticisms to be made of the Democrats? Yes, absolutely. Is 'they do the same thing lol' in any way a meaningful comment that's built on anything except edgy grumbling, contrarianism, ignorance or some magical cocktail of the three? Not even close.

At least start paying attention if you want to be taken seriously.

What are your predictions for the final ruling (e.g. 5v4 for, 7-2 against, etc)? How confident are you?