Big Day At Supreme Court As It Hears Case Of 'Democracy v. LOL'

The Supreme Court will hear oral arguments today in a case that has the potential to wreck American democracy, which seems like an appropriate enough threat to be thinking about on Pearl Harbor Day. The case, Moore v. Harper, involves an obscure — some would say bananas — legal idea called the "independent state legislature theory" (sometimes "doctrine"), which pretends that the Constitution gives state legislatures the unquestionable authority to set federal election law.

Under this cockamamie construct, once a state lege has passed a law affecting congressional or presidential elections, no other part of state government can question that law, not even a state supreme court interpreting the state constitution. In the most extreme versions of the theory, a state's governor wouldn't even have the ability to veto a legislature's election bill. Only the US Supreme Court would be able to decide on the constitutionality of a state's laws regarding federal elections. You can see why that might be a problem.

If that sounds crazy, that's because it is. The claim has been rejected in numerous Supreme Court cases for over a century, and even the rightwing Federalist Society has filed an amicus brief against it. Update/Clarification: the brief in opposition is from Steven Gow Calabresi, one of the founders of the Federalist Society. The group itself has often pushedfor the theory, particularly under Leonard Leo, whose "Honest Elections Project" has filed an amicus brief in support. See this rundown of the many many briefs in the case. A Federalist Society attorney is arguing the case in favor of North Carolina.

But for some Republicans, the independent state legislature theory looks like a terrific way to keep Republicans in power forever, so hey, why not see if the Alito Court will go for it?

The case involves an extreme gerrymander passed last year by the heavily Republican North Carolina Legislature, which would give the vast majority of the state's 14 congressional seats to Republicans. As the Brennan Center explains, the redistricting maps are "so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats."

North Carolina's state constitution includes a "free elections clause" that prohibits such partisan gerrymandering, and the state Supreme Court struck down the map in February of this year, calling it an

egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”

In response, the Legislature went and passed another extreme gerrymander, and when it too was challenged in state court, Republican legislators went to the US Supreme Court to step in and let the map stand, because hey, independent state legislature, and nobody is allowed to question us, not even our state constitution or the state supreme court.

SCOTUSBlog explains that the theory rests on

two provisions of the Constitution. The provision directly at issue in Moore, Article I’s elections clause, says that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Similarly, Article II’s electors clause says that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.” Proponents of the theory argue that, under the plain text of those two clauses, state courts are not authorized to supervise how state legislatures run elections for Congress or the president. Critics argue that neither clause was ever understood – including at the time of the Founding — to confer such unchecked authority on state legislatures.

You might think the Supremes would be persuaded this is nonsense by the simple fact that we've gone for nearly two and a half centuries without state legislatures having nearly unlimited power to make up election laws. But hey, this is a Court that looked to judges who believed in witchcraft for a precedent to overturn Roe v. Wade, so let's not get too worked up over its pretended respect for the "history and traditions" of US law.

If the Court rules in favor of the independent state legislature theory, democracy would be boned well beyond simply giving legislatures the go-ahead to gerrymander at will. It would also open up the possibility of state legislatures simply disregarding the actual vote in presidential elections and appointing electors they prefer — which was precisely what the Trump scheme to overturn the 2020 election wanted Republican-controlled legislatures to do.

It's at least kind of fun to collect the adjectives used to describe the doctrine. The Brennan Center goes with a nice sober "untenable," while Vox's Ian Milheiser prefers "deranged" and "utterly nonsensical," among others. They all work, because the entire mess relies on a fantastical notion that somehow the Framers of the Constitution wanted state legislators to have completely unchecked power over how federal elections work, which even a reasonably bright high schooler in AP history would know isn't at all how American government works, what with all the checks and the balances and the mechanisms intended to keep any one branch of government from going nuts and stomping all over everything.

The ACLU gets right to the chief problem with the theory: It's downright un-American, and it relies on a deliberate misreading of the Constitution:

That is not how our system works. Legislatures cannot ignore the constitutions to which they owe their very existence. They cannot act outside the law, without any checks and balances. Yet that is what the North Carolina legislators are asking the Supreme Court to give them — the power to set rules for voting and elections without state constitutional limits enforced by state courts.

Proponents of the independent state legislature theory try to hang their hat on the U.S. Constitution, but their position is contrary to the Constitution’s original and ordinary meaning. The Framers fundamentally understood the power of “legislatures” to be drawn from and limited by written constitutions. [...] The suggestion that the Framers trashed that fundamental principle when it comes to legislating the rules of democracy makes no sense.

Then again, making sense really doesn't seem to be the chief concern of the current Supreme Court. If five of the six Republican-appointed justices decide to completely overturn how the USA does federal elections, we'd have a hell of a mess on our hands, as the Brennan Center explains:

The theory would throw elections into chaos, nullifying hundreds of election rules put in place through ballot initiatives, state constitutions, and administrative regulations — including foundational state policies like the processes for voter registration and mail voting and basic guarantees like the secret ballot. State lawmakers would be able to adopt vote suppression legislation without any checks or balances from state courts or even gubernatorial veto.

We'd like to think that the broad opposition to the theory from conservative legal experts might mean the Supremes won't throw out democratic norms. But with this crowd, it's really difficult to say for certain that they wouldn't dare to tamper so recklessly with the Constitution. The oral arguments for this nonsense begin at 10 Eastern if you want to listen in. Maybe put any breakables out of reach first.

[Brennan Center / Vox / SCOTUSBlog / ACLU / US Supreme Court audio / UPDATE: Democracy Docket / Mother Jones]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.


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