Chiseling away at democracy
18th October 2022 · 0 Comments
The U.S. Supreme Court’s denial last week of former President Donald J. Trump Sr.’s scheme to get his hands on the classified documents he stole from the U.S. government is cause for celebration. Nonetheless, voting rights advocates must remain vigilant to the prospect that the High Court’s potential ruling in Moore v. Harper could end free and fair federal elections, elevate state rights, and open the floodgates to partisan gerrymandering Republican dominance of elections.
Moore v. Harper is a North Carolina election case in which justices will weigh in on the “independent state legislature” theory. The theory assumes state legislatures have the sole power under the Constitution to regulate federal elections without interference from state courts, Amy Howe explains on the SCOTUS blog.
The case was brought by Rep. Timothy K. Moore, the Speaker of the North Carolina House of Representatives, and the North Carolina League of Conserva-tion Voters, Inc. in response to two gerrymandering case victories by Rebecca Harper and Common Cause.
In 2021, North Carolina’s Republican-dominated state legislature passed an extreme partisan gerrymander on a party-line vote to lock in a supermajority of the state’s 14 congressional seats. The gerrymander was so severe that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats. The map was a radical statistical outlier more favorable to Republicans than 99.9999 percent of all possible maps, the Brennan Center reports.
Because the U.S. Supreme Court ruled that federal courts cannot hear partisan gerrymandering cases in 2019, voters contested the map in state court, contending that the map violated the state constitution’s “free elections clause,” among other provisions.
In February 2022, the North Carolina Supreme Court agreed with the voters. It struck down the map, describing it as an “egregious and intentional partisan gerrymander. . .designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
Associate Justices Alito, Thomas and Gorsuch believe that the U.S. Supreme Court “sooner or later,” will have to settle the contested independent legislature theory. The Moore v. Harper lawsuit is central to whether state legislatures will wield unchecked power over elections.
The agreement to hear the lawsuit is another step in the High Court’s Republican majority’s partisan goals. If the Court decides in Moore’s favor, the results will be rampant partisan gerrymandering that will ensure Republicans stay in power for decades.
Democracy Docket, a judicial watch platform, lays out the dangers of codifying the political theory. “This right-wing legal theory advanced by the Republicans, in this case, suggests that the Elections Clause gives state legislatures exclusive authority to set federal election rules, including drawing congressional maps, free from interference from other parts of the state government, such as state courts and governors.”
The Brennan Center also warned the independent state legislature theory would cause significant disruption by potentially nullifying state constitutional provisions for federal elections. State constitutional bans on gerrymandering in Florida, Ohio, North Carolina and other states could die, as could independent redistricting commissions in Arizona, California, Michigan and other states.
Giving such unfettered power to state legislatures means Republicans in state houses can ram their agendas down our throats. The Dobbs case, in which the Republican majority on the SCOTUS overturned Roe v. Wade, is an example of the far-right’s partisan agenda, as is the High Court’s refusal to weigh in on partisan gerrymandering cases.
The fix is in for a total return to state legislatures making laws that disenfranchise people of color and the poor. We don’t need the U.S. Supreme Court to cede electoral power to any Republican-controlled state legislatures, especially not Louisiana’s state legislature.
We’ve experienced the repression and oppression meted out by Republican legislators who consistently draw gerrymandered districts to retain power and create unfair laws.
In Louisiana, the non-unanimous jury law that ruled supreme for more than a century and led to Louisiana becoming the incarceration capital of the world is one reason state legislatures should not get unchecked power to draw congressional districts.
Another is the Louisiana Legislature codification of an abortion ban that is wreaking havoc on Louisiana women.
Nancy Davis, 36, told The Guardian that she had her pregnancy terminated on September 1 after traveling from her hometown of Baton Rouge to a clinic in Manhattan that agreed to complete the procedure after a local hospital denied her an abortion amid uncertainty over the procedure’s legality. She was carrying a skull-less fetus that would die within a short time from birth.
The Louisiana Legislature’s ballot amendment that allowed ex-felons to vote made it difficult for the formerly incarcerated to access the ballot box. They are forced to wait five years to vote and can’t be on probation.
Many more unfair laws are riding the books in Louisiana due to the gerrymandered districts drawn by Republican legislators. It’s crystal clear that partisan gerrymandering is responsible for the unfair advantage wielded by Republicans in this so-called red state. Of six congressional seats, only one is held by a Democrat, and both senate seats are held by Republicans.
But when a former Republican-appointed federal court judge warns about the dangers of codifying the “independent state legislature theory,” we should pay attention.
Michael Luttig, appointed by President George H. W. Bush, formerly served on the U.S. Court of Appeals for the Fourth Circuit for 15 years. He advised Vice President Mike Pence on January 6. His stark warning in an opinion piece published by CNN last April is cause for alarm. In “The Republican blueprint to steal the 2024 election,” Luttig wrote that the previous presidential election was a dry run for the next.
Luttig made the case that Trump and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment if Trump lost the popular and Electoral College vote.
“The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump.”
Trump and his inner circle believed that under the Elections and the Electors Clauses of the Constitution, state legislatures possess plenary and exclusive power over the conduct of federal presidential elections and the selection of state presidential electors. Not even a state supreme court, let alone other state elections officials, can alter the legislatively written election rules or interfere with the appointment of state electors by the legislatures under the independent state legislature theory.
If the U.S. Supreme Court agrees with Republicans and codifies the theory, we will be on the fast track to a dictatorial government.
Will the U.S. Supreme Court Republican associate justices take off the supremacy blinders and understand that if they give supreme power to Republican-dominated legislatures, there will be no need for a U.S. Supreme Court or state supreme courts.
Is giving unfettered control of elections to one political party a good move?
We say no.
This article originally published in the October 18, 2022 print edition of The Louisiana Weekly newspaper.
