The Worst Supreme Court Decision Is Yet to Come | Opinion

Former Senator Tim Wirth and I wrote a column recently on how a Republican landslide in the House of Representatives races this fall will create a very clear path for Donald Trump to be re-elected president of the United States. Not that I think Donald Trump would win the popular vote, or even achieve an Electoral College victory, but instead, if the majority of the House ends up being Big Lie adherents, a Kevin McCarthy-led House would maneuver through our electoral process loopholes to deliver the presidency to Trump.

While it is heartening to see that a bipartisan group of senators have come forward with a package of amendments to reform the Electoral Count Act of 1887 that would close some of these loopholes, these reforms will not cut off the high probability that cheerleaders for the Big Lie in both houses will still be able to prevail. The major proposed reform would require 20 percent of the House and the Senate to object to certification of any state's Electoral College slate, as opposed to only one House member and one senator under the Act today. This is probably still not a high enough threshold to keep the 2024 election from being thrown into the House of Representatives where a state-by-state delegation vote would be able to clearly deliver the presidency to Donald Trump.

Scarier still, a potentially new path has been opened to allow the Big Lie crowd to steal the next presidential election. This potentially new path is created by our current extremist Supreme Court having recently decided to hear the case of Moore v. Harper. This is a case out of North Carolina related to gerrymandering but puts at issue a key premise of the so-called independent state legislature doctrine.

This so-called doctrine was until very recently no more than a right-wing legal fantasy that posed the theory that state legislatures alone have the right to decide the outcome of presidential races, and that neither the governor of a state or a state Supreme Court can provide any check on the legislature's power to appoint a state's Electoral College slate.

While the Moore v. Harper case does not present facts related to the choosing of a state's electors in a presidential election, it presents the issue of whether state courts have any right to review the decisions state legislatures make as to the holding of federal elections. Throughout all the illegitimate challenges that President Trump's legal minions made to the outcome of the 2020 election, it was often state courts which were the necessary check throwing those cases out.

Giving state legislatures supremacy as to their role in federal elections goes a long and troubling way toward allowing Republican-controlled state legislatures in key swing states to implement Big Lie 2, "the sequel," and create a new fraudulent pretense to steal an election and overturn the popular vote. Such a decision by the Supreme Court would also create a powerful precedent for the Court to shoot down Electoral Count Act reforms, if they end up passing, on the basis that they undermine the supreme role the Constitution confers on state legislatures.

What makes this Supreme Court case particularly troubling is beyond it providing a whole new, and all too real, path to overturning a legitimate presidential election—it is that the consequences of establishing the independent state legislature doctrine as Supreme Court precedent are even more sweeping than the Court's recent abortion and gun rights decisions. As completely out of step with the views of the majority of Americans as those two recent decisions were, both the Biden administration and various states are putting in place ways to sidestep the severity of those decisions by maintaining access to abortions and putting in place more strictive gun laws.

A view of the U.S. Supreme Court
A view of the U.S. Supreme Court at sunset. Drew Angerer/Getty Images

However, if the independent state legislature doctrine is established by the Supreme Court that gives state legislatures unfettered discretion to determine the outcome of elections in their state, including unreviewable power over the appointment of electors, a very small number of swing states can overturn democracy for every state—the entire country—regardless of how true to our democratic values the state legislatures in other states prove to be. Moreover, critical swing states like Michigan, Wisconsin and Pennsylvania have had Democratic governors that are today a check on rabid Big Lie state legislatures. The independent state legislature doctrine would remove that political safeguard from the federal election process. In other words, the Moore case poses an enormous existential threat to our democracy.

There is a partial answer, but it is not an easy one. The view has been that because of gerrymandering, these Republican state legislatures are so entrenched that there is no hope of flipping these swing states so that one or both houses of these state legislatures could end up in Democratic control. The reality is, however, that it is conceivable that some of the most problematic state legislatures when it comes to the Big Lie can indeed be flipped.

An organization called Forward Majority, run by the indefatigable Vicky Hausman, has issued a report demonstrating that Republican state legislative control in Arizona, Michigan, and Pennsylvania today rests on a total of 12 seats. For instance, in Arizona there is only a two seat Republican majority in both the House and the Senate. In Michigan, there is only a six seat difference in both the House and the Senate. Forward Majority has pointed to the fact that there are 1 million likely unregistered Democratic voters across 40 newly competitive districts in the three states—where the Democrats could flip at least one legislative chamber, which makes this eminently doable.

In Arizona, for example, the margin of victory for the Republicans in the two state districts that determined Republican control of the legislature was a total of 3,000 votes. In Michigan, it was 8,600 votes. Because newly drawn districts have made a number of districts more competitive for Democrats, even though there are a number of other districts heavily gerrymandered in favor of Republicans, picking up a total of 25 seats across the three states given these dynamics is an absolutely attainable goal.

How crucial would flipping one house in each of these three states be? When combined with the 20 other states where Republicans don't control the entire state legislature, the states provide the 270 Electoral College vote total a Democratic candidate would need to win the presidency. That is very crucial.

Republicans have excelled at putting enormous effort at developing political strength at the state legislature level. So successful in fact, today Republicans have control of both houses of the state legislature in 30 states. It is more important than ever that all voters—whether Democrats, Republicans, or Independents who care about our Democratic values—fight back here in light of what the Supreme Court might do, and enable a change of control of key swing state legislatures. One very powerful way to do that is to support the work of Forward Majority. While progressives are rightfully focused on what can be done to circumvent the Supreme Court's decisions in the abortion and gun rights decisions, the worst decision for our democracy is yet to come. What Democrats must do to thwart the effects of that decision, even before it comes, is within reach.

Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC and is the former CEO of TiVo. Currently, executive chair of Engine Gaming & Media, and a member of Keep Our Republic, an organization dedicated to preserving the nation's democracy.

The views expressed in this article are the writer's own.