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Ex-Judge Luttig Calls GOP-Backed Legal Theory Grave Threat

Aug. 9, 2022, 6:12 PM

J. Michael Luttig, a retired federal appellate judge and conservative legal figure, forewarned an existential threat to democracy if the US Supreme Court affirms a GOP-backed election law doctrine.

Speaking at an American Bar Association panel on Monday, Luttig sounded an alarm about a potential conservative political victory in the case, Moore v. Harper, asking the justices to embrace what scholars call the “independent legislature theory.” The doctrine argues the Constitution vests state lawmakers with near-exclusive authority to set federal election rules.

“If it does conclude that there is such a theory, then I’ve said that would represent the gravest threat to American democracy today,” Luttig said about the case to be heard in the upcoming term.

The former Antonin Scalia clerk, Reagan-era White House attorney, and ex-member of the US Court of Appeals for the Fourth Circuit has broken ranks with many conservatives over the Jan. 6 riot. He’s warned of future attacks on the electoral process by those aligned with former President Donald Trump’s insistence that the 2020 ballot was stolen from him.

Luttig recounted during the “Democracy in Peril” panel of the years-long GOP effort to get the independent legislature theory before the high court. The court previously declined to resolve the existence or scope of the theory in cases concerning the 2020 election.

The 6-3 conservative-led court granted review of the appeal in Moore by North Carolina Republicans seeking to reinstate a voting map they drew in the General Assembly to lock in electoral victories. A GOP-win would shift more federal election power to the state legislatures that are now disproportionately controlled by Republicans.

To contact the reporter on this story: Tiana Headley at theadley@bloombergindustry.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com