How the Supreme Court Could Undermine the Integrity of Our Elections

Mmembers of the Supreme Court The Conservative supermajority just last week took the next step in a little-noticed, but extremely dangerous project: to attempt to embed into law a radical misinterpretation of elections and the electoral clauses of the Constitution, which, if successful, would create electoral chaos across the country. Before next summer, and well before the 2024 presidential election, the Court could rob state courts and constitutions of their ability to check and balance state lawmakers as they craft federal election laws, giving partisan majorities almost total control over how voters vote and how those ballots are counted. And it would make the current Court – which already has a horrible record on voting rights – the ultimate judge of the legality of the actions of legislatures.

The notion at the heart of their project – the so-called Legislature Theory of the Independent State – is on the fringes of American jurisprudence, so far out there that its few proponents have struggled to unearth even the tiniest scraps of jurisprudence and history. to justify it. But his supporters in court seem to believe they’ve found a shortcut around it all with a case named Moore v. Harperwhich they have just added to the court’s list for its term beginning this fall.

The appeal dates back to February, when the North Carolina Supreme Court overruled an extreme partisan gerrymander of the state’s congressional map that would have given Republicans a great advantage in races for House seats. Several Republican state lawmakers have asked the Supreme Court to restore the skewed map for this spring’s primary election. Their emergency papers claimed that the North Carolina State Supreme Court did not even have the power to review the congressional map drawn up by statute, despite the fact that the map violated several guarantees of the US constitution. the state, because, in their view, neither state courts nor state constitutions should have any say in the conduct of federal elections.

If the lawmakers’ theory sounds radical, that’s because it is. It is based on a flagrant misinterpretation of the constitutional provisions that assign responsibility for regulating federal elections. These clauses give that power to each state’s “legislature” (while reserving ultimate power to set the rules for Congress). Fixing on the term legislature, proponents of the theory insist that the clauses grant exclusive and nearly unlimited power to these legislatures to conduct federal elections. Ordinary checks and balances of democracy, such as executive leaders vetoing laws and courts reviewing and overturning acts of the legislature, fall by the wayside. The theory would create a vacuum of anarchy in the most dangerous place: elections.

Unsurprisingly, the theory was a crucial tool for would-be election subversives seeking any leverage to overturn the results of the 2020 presidential election. It was a major talking point in President Donald Trump’s public campaign to undermine the validity of the results. In post-election interviews, President Trump himself invoked the theory, saying that “state legislatures have not approved all the things that have been done for these elections”. And it was a key part of the litigation disputing which ballots should be counted in Wisconsin and Pennsylvania.

The Supreme Court dismissed those challenges in the fall of 2020, and that should have been the final word on the theory. But Judge Samuel Alito, joined by Judges Clarence Thomas and Neil Gorsuch, wrote a “statement” validating the theory, in addition to dissents and agreements to similar effect. And they sent the theory back out into the world with new momentum for a quick return. In doing so, these judges had, by the sheer power of their office, converted hastily cobbled together nonsense for desperate legal challenges into a litigation position that would not lead to the sanctioning of attorneys. And they encouraged North Carolina gerrymanders to try their luck with the United States Supreme Court after hitting the North Carolina Supreme Court.

In March, the Court dismissed lawmakers’ emergency motion with an unsigned order. But Alito, again joined by Thomas and Gorsuch, posted another CONTESTATION that almost asked Republican lawmakers to file a full appeal to put their gerrymander back in place after the 2022 election. (UN competition of Judge Brett Kavanaugh suggested much the same thing.) Lawmakers obliged just 10 days later with a Supreme Court petition citing Alito’s dissent with his own skimpy quotes as vindication. The Court has now repaid the favor taking their appeal into argument.

As is the case with most decisions to grant a hearing to a case, the judges did not explain why they took the case. But Alito’s earlier dissent highlights the fundamental dynamic driving this dispute forward: A few judges are actively rushing for the opportunity to turn their thoughts into law, as soon as possible, no matter how baseless those thoughts are. .

Alito’s dissent framed the theory at the heart of the lawmakers’ appeal as an “unusually important and recurring issue” — the kind of issue the Court is normally expected to step in and decide. But, insofar as the theory is a “recurring question”, it is only because these same judges keep talking about it. Indeed, the eight quotes that Judge Alito offered to support his call to adopt the theory show no recurring questions, other than those that Alito, Thomas and Gorsuch ask.

Four of Alito’s eight citations were for orders in 2020 election cases, but none of them support the theory. Three of the four quotes indicate lawsuits based on the theory and were dismissed, and the fourth has nothing to do with it. None contain even a shred of language suggesting that the theory might have merit or pointing to legitimate questions about its accuracy. The fifth quote concerned an agreement (read: not even the majority opinion) in Bush versus Gorethe case of 2000 that the The Court itself basically said should never be cited to resolve future cases. This agreement was hastily buried by the Court and remained intact for decades, until Kavanaugh threw it in a footnote in a concurring opinion of a 2020 Election Case. The other three were dissents and endorsements of various 2020 Election Cases… written by Alito, Thomas, and Gorsuch.

Moreover, Alito’s dissent cites no opinion of the trial courts or appellate courts endorsing the theory or demonstrating a dispute between the courts as to its accuracy – one of the most common grounds for the Court supreme take a case. And the dissent is devoid of other authorities, such as law review articles, to which a judge could refer to outline a new, but valid, theory.

Not surprising. In the two years since these judges began touting the theory, a scholarship burst demystified it from every conceivable angle: the ordinary meaning of the text of the Constitution, undisputed story of the founder timea century of uninterrupted practice and previous, and common sense. And there is no significant difference of opinion between the lower courts. Lawmakers have tried to circumvent these issues and bolster the theory in their papers, but their case is no stronger.

There is no good reason, in other words, to believe that a case based on theory can win. Except the assertion of some judges that it could be the case.

Thus, when Alito writes that the Court “will have to resolve this question sooner or later”, he is not making a statement about the state of the law or an inevitable wave descending on the Court. He predicts a crisis he is creating.

If the Court goes all the way in turning lawmakers’ theory into law, American democracy will suffer. The theory would not only give broad license to extreme gerrymanders who would allow politicians to entrench themselves permanently against the will of voters. It could also create avenues to invalidate basic and essential regulations created by state election officials to ensure that the machinery of elections works and people can vote safely in an emergency. Likewise, it could undermine the state’s longstanding constitutional protections that shield people from discrimination at the ballot box and let them vote in secret. It would put all the authority for making future rules in the hands of state legislatures, among the most radically partisan political players in the country today. It would fetter the power of state courts to interpret these laws, limit the ability of state courts to review their legality under state constitutions, and place state courts under the watchful eye of the revanchist Supreme Court of country. This chaos would result is an understatement.

Ja Court may still reject this dangerous theory. Only four votes are needed to decide to hear a case, but five public votes are needed to make a law. So far, the judges have pushed their project forward thanks to its under-the-radar and relatively bare-bones emergency appeal record. Going forward, however, the case will be on what is known as the Court’s merits docket, attracting all that that entails: a full briefing from the parties (and this case has a lot of them) and friends of court, a public dispute and months of scrutiny. in the press and on social networks.

Any justice ultimately seeking to write an opinion in favor of the theory of the independent legislative state will struggle to produce a credible one in the face of the overwhelming facts and law that oppose it. Such an opinion will be an even more transparent judicial decision than even the recent outright and rightly derided opinions of the Court expanding gun rights and eliminating constitutional protections for the right to abortion.

The task now is to expose the baselessness and radicalism of these judges’ latest scheme, as the public wakes up to the real dangerousness of this Court and its reverence for the Court crumbles. So maybe the judges who asked how far they can push things will start asking a different question: How long can they keep sustaining the unbearable?