How six states could overturn the election
Late last month, in one of its last acts of the term, the Supreme Court queued another potentially precedent-breaking decision for next year. The court’s consent to the hearing Moore vs. Harper, a case of North Carolina’s shifting of districts, is not all bad news for efforts to control gerrymandering. The court’s right-wing supermajority is poised to let state legislatures overturn voters’ choices in the presidential election.
It takes only one strategic fact of political arithmetic to understand the stakes and motives of the Republicans who brought the case. Six swing states—Pennsylvania, Michigan, Wisconsin, Arizona, Georgia, and North Carolina—are trending in the presidential election but ruled by rigged Republican lawmakers. No comparable red trend states are included in democratic legislatures.
Joe Biden won five of those six swing states in 2020. Donald Trump then tried and lawlessly failed to get GOP state lawmakers to scrap Biden’s victory and appoint Trump electors instead. That Moore The case marks the debut of a dubious theory before the country’s highest court that could give Republicans legal protection in 2024 to do what Trump asked for in 2020. And if democracy is eroded in just a few states, it can rock elections nationwide.
Republican attorneys, noting their structural advantage among battleground state legislators, pose the “independent national legislation“ (ISL) Teaching. The doctrine is based on a biased reading of two articles of the Constitution, which assign control over the “nature” of congressional elections and the appointment of presidential electors in each state to the “legislature.” Based on this language, the doctrine proposes that state legislatures have virtually unlimited power over elections and voters. State courts and state constitutions, on this reading, have no legitimate authority over legislatures in the exercise of their constitutional duties in the United States.
This is a really radical proposal. It was never accepted by any state or federal court, and the Supreme Court itself didn’t rule until 2019 Rucho against common causethat “state constitutions can provide standards and guidelines for the application of state courts” in cases of redistribution. in the another case of redistribution Four years earlier, the court upheld a longstanding precedent that “legislative” powers are defined and controlled by state constitutions. The idea that legislatures are not bound by any limitation from their own founding documents is a side discussion point invented for Republican political advantage.
Still, three justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — have spent two years championing the doctrine of the independent state legislature in the judiciary Testify and contradicts. Neither of these writings had legal force, but together they served as an invitation for a plaintiff to present them with a case suited to their purpose. A fourth judge, Brett Kavanaugh, wrote a accordance in which he invited the Republicans of North Carolina Moore Case referred back to Supreme Court after failure of emergency motion. Where John Roberts and Amy Coney Barrett stand on the doctrine is unclear.
The immediate question in Moore whether the supreme state court can overrule the legislature’s choice of how the polling districts are drawn by applying the state constitution. (Until the ISL emerged, the long-standing answer was yes.) But proponents of the doctrine of independent state legislatures have a larger goal in mind: the presidency.
If you gave lawmakers a blank check on how presidential nominations are made, a Republican majority — in the most muscular version of ISL — could simply ignore a Biden win in the state’s popular vote and nominate Trump voters instead.
Even this Supreme Court could not go that far. It might recognize that after a state legislature has passed legislation providing for a presidential popular vote, voters cannot take that power away from voters after the vote. But in this case, ISL still has plenty of room to overturn the will of the people.
In the legal dispute over the 2020 election Texas and other Republican-led states showed exactly how that argument would work when they asked the Supreme Court to block the certification of Biden electors in four swing states. Texas argued that the election results in Pennsylvania, Georgia, Wisconsin and Michigan were unconstitutional because “law enforcement and judicial officials made material changes to the statutory election laws,” such as changing deadlines for mail-in ballots because of the coronavirus pandemic. The Supreme Court did not rule on the merits and declined to hear the case because Texas had no standing to sue.
But if the Supreme Court adopts the ISL doctrine Moore, the argument Texas made becomes a role model in 2024. The conditions Texas cited in its argument are almost always present in today’s elections. Legislators make laws governing the conduct of elections, but election administrators must interpret those laws and establish regulatory rules such as polling districts, polling times, and counting procedures. State courts sometimes order rule changes to comply with their state constitutions. It is all but impossible to hold an election without making rules or decisions that the legislature has not expressly authorized.
The harmful threat of ISL, wrote Richard L. Hasen, voting law expert at UCLA, believes that “a Republican-dominated state legislature in a Democrat-won state could simply come together and declare that local administrators or courts are being swayed by the legislature’s own rules, and thus the Legislature will take matters into their own hands and choose their own electoral roll.”
But in one comment on the Moore In this case, former White House Counsel Bob Bauer and Harvard law professor Jack Goldsmith identified another legal threat to the presidential election that they believe is more serious. To Under the Electoral Count Act, state legislatures can discard the results of the presidential election and instead nominate voters by declaring that the voters “did not make a choice” — a phrase undefined in the law that was exploited in 2020 in apostate vote-stealing attempts A legislature could use any irregularity or baseless fraud allegation to claim voters made no choice.
This scenario is most severe if Republicans win back the House and Senate in November. It is up to Congress to conduct a formal census of presidential voters, and the political interests of a GOP-led House and Senate would align with the GOP state legislatures who appointed the GOP electors.
This is where the reform of the Electoral Count Act, a 19th-century statute, comes into play. I have previously written extensively about flaws in this law that put the nation at risk of a failed election. A bipartisan group of senators led by Joe Manchin and Susan Collins were released a bill Last week, that would make it harder for state legislators — or Congress — to evade a presidential election.
The prospects for passing the bill are unclear, but the draft would include several valuable reforms. First, it removes the entire provision that allows lawmakers to appoint voters if voters “did not make a choice” on Election Day. Instead, it mandates that voters “in each state be appointed on election day in accordance with the laws of the state enacted before election day.” That clarifies important ambiguities and prohibits a lawmaker from changing the rules after voters have cast their ballot.
The bill also seeks to ensure that there can only be one valid voter list in each state, establishes that the governor is (usually) the certifying authority, and gives federal courts jurisdiction to certify a voter list when the state this refuses do this. If Congress passes the law, it would agree to accept as “final” the state or court’s decision on which voters should be certified.
Some of the country’s leading suffrage scholars to have welcomed the bipartisan draft. However, it is unclear whether the right wing of the Supreme Court would accept the rewritten law as constitutional. The Collins-Manchin bill arguably strips Congress of the powers it has under the Twelfth Amendment to decide which voters to count, and the court could decide Congress cannot waive those powers. Proponents of the doctrine of independent state legislatures, meanwhile, may be skeptical about letting a governor or a federal judge rather than the legislature have the final say on electoral college certification. Alito, Thomas, Gorsuch or other judges may also be unwilling to accept that Congress can prevent state legislatures from appointing an alternate list of voters when the outcome of an election is disputed.
Regardless of whether Congress passes a legislative reform or not, Moore could pave the way for a major turnaround in electoral law in the run-up to the 2024 federal election. The right wing of the court seems to be getting involved. By traditional norms for issuing certiorari, the Supreme Court would not even have included this case on its calendar. The petitioners, led by the Republican Speaker of the North Carolina House of Representatives, never advanced the ISL argument during their state trial, and legal parties typically cannot ask a question on appeal that they have not asked below. According to that last proposed schedulethe Supreme Court will not hear Moore earlier than December. On the face of it, the case will be moot by then: North Carolina’s redistribution map only applies to the 2022 election, which will be held the month before. Nor is there any significant conflict of opinion in the lower courts for the judges to resolve.
None of these factors held back the right-wing Supreme Court justices. Just like tipping over Roe v. calf, a decision they need not have made to uphold Mississippi’s abortion law, right-wing judges seized the first available vehicle for a paradigm-shifting decision. Nothing good will come of it.