WASHINGTON—The right-wing Republican-named U.S. Supreme Court majority appears to be on the verge of approving a Republican-pushed radical theory to give state legislatures, and only them, complete control of voting and elections—to the dismay of both the court’s three Democratic-named justices and of demonstrators outside the court yesterday. If they end up ruling the way they seemed to be leaning yesterday the entire U.S. election system will be upended, killing the ability of voters, not lawmakers, to choose the president.
There would also be no way to counter any gerrymandering of district lines by the courts or anyone else on the state and federal levels. The broadest interpretation of the extremist right-wing theory the Court is considering would also remove the veto power from state governors when it comes to any matters relating to elections. Early voting, voting by mail, same day voter registration, and many other things could be consigned to the ash heap of history by right-wing legislators determined to kill democracy. Reasonable legal scholars have joined countless other civil and human rights activists in declaring that the Republican attempt to kill democratic elections in the country should never have been taken up by the Court.
“This could upset our entire system of checks and balances at a time we need it most,” Justice Elena Kagan, one of the three progressive justices, told lawyers arguing the Moore v Harper case on Dec. 7.
“This is a theory with big consequences,” Justice Kagan added. “It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no remedy for that—even if the courts think that’s a violation of the Constitution.”
Trump lawyers John Eastman and Rudy Giuliani, who is facing disbarment for lying in court, pushed the theory of independent state legislatures now before the Supreme Court as the justification for their attempted coup in January of 2021.
An out-of-control state legislature would be able to substitute its own slate of presidential electors for the ones voters had chosen on Election Day – the very strategy former President Donald Trump employed in trying to overturn his election loss in 2020. For almost the entirety of U.S. history state constitutions and the courts have prevented this from happening – the right wing’s success in the Supreme Court would end the centuries-old protections.
North Carolina Republicans who brought the case to the Court so they could maintain severely gerrymandered district lines are hanging their hats on the very narrow phrase in the Constitution that says the “times, places and manner” of elections are set by state legislatures. Nowhere does it say that there are no checks, like there are with everything else in the Constitution, to control an out-of-control state legislature.
Outside the court, demonstrators protested its looming denial of everyone’s voting rights by leaving such basic rights to the whims of politically skewed legislatures. One woman captured their sentiments, raising a large bedsheet banner above her head while standing on the plaza in front of the court.
“SCOTUS is illegitimate,” it read in capital letters. “Illegitimate” was in red.
At issue is the “independent state legislatures” theory, pushed by North Carolina’s Republican-dominated legislature in the Moore case. The ACLU and its allies warned of the harm that could ensue if the state lawmakers had no checks or balances on their power. Biden administration, siding with them, said complete chaos could result.
ACLU allies, in friend of the court briefs, included the nation’s biggest union, the National Education Association, and the venerable Jewish labor group, the Worker’s Circle.
In the friend-of-the-court brief the two joined, lawyers told the court that voters of color and women, in particular, would lose voting rights of all types—from the right to vote to the right to have their votes counted to the right to true reporting of election results.
Inside the court, the right-wingers—Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch—seemed sympathetic to North Carolina’s argument, which rests on the one small U.S. Constitution clause.
How the radical right took the Court
Right-wing Republican Oval Office occupant Donald Trump, aided by the right-wing Federalist Society, which evaluated his court nominees, and Senate Republicans who approved them, seated Justices Kavanaugh, Coney Barrett, and Gorsuch on the High Court bench.
Getting right to the point, attorney David Thompson, speaking for North Carolina’s legislature, declared the U.S. Constitution “requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function.”
In prior cases, the right-wingers have signaled they would be open to handing all power over election laws to legislatures but didn’t really show their hand in the Dec. 7 court session.
One exception came when Biden’s Solicitor General, Elizabeth Prelogar, argued against the theory and that states must follow their own constitutions, their courts, and the U.S. Constitution. That prompted Justice Thomas to call the administration’s stand “highly ironic.”
If the five right-wing justices agree with North Carolina’s Republican-run legislature, their ruling would cement right-wing domination of government for decades. Chief Justice John Roberts, an institutionalist unlike the five, threw a monkey wrench into Carolina’s case by getting Thompson to admit a governor could veto any election law the legislature enacts.
“Vesting the power to veto the actions of the legislature” in the governor “significantly undermines the argument that it can do whatever it wants…That’s a pretty significant exception” to the whole theory and case, the Chief Justice said.
Justice Ketanji Brown Jackson got Thompson to admit that he believed even a state’s own constitution couldn’t override the legislature’s election laws. She replied “Mm-hmm,” when he said that.
“I guess what I’m a little worried about is the suggestion that when the legislature is acting—is exercising—legislative authority in this context (of elections), it does not have to adhere to any state constitutional constraints on its power,” Justice Jackson later told former Democratic Solicitor General Neal Katyal, arguing for the ACLU and against the theory.
North Carolina’s Thompson “is saying we do have to comply with the federal Constitution. What we can violate is the state constitution. And what I don’t—I can’t—wrap my mind around that argument,” Justice Jackson told Katyal. “I can’t either,” he replied.
Biden Administration Solicitor General Prelogar warned chaos would occur, for states and voters, if the court adopts the independent state legislatures theory and applies it to all elections, from the presidency on down.
“Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding. That would sow chaos on the ground as state and federal elections would have to be administered under divergent rules,” she said. Courts “would be flooded with new claims, often at the 11th hour, in the midst of hotly contested elections.
“The court should adhere to the consistent practice that has governed for more than two centuries and should reject petitioners’”—North Carolina’s—”atextual, ahistorical, and destabilizing interpretation of the (Constitution’s) Elections Clause,” Prelogar said.
The justices are expected to decide the case by the end of June.
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