The next push from the right working its way to SCOTUS might be the most dangerous of all, the return of federal electoral power to state legislators. This would, in theory, allow states to overrule and ignore their own voters and approve their own (fake) slates of electors, as was contemplated in the last presidential election.
The case, Moore v. Harper, concerns whether the North Carolina state legislature is precluded from executing an extreme partisan gerrymander by state courts’ interpretation of the state constitution. If the Supreme Court rules in the legislature’s favor, the court could endorse some version of the theory, which holds that state legislatures have near-plenary control over election rules.
This is supposedly grounded in “originalist” readings of the Constitution. But recent scholarship has debunked this, documenting that founding-era understandings gave a central role to state constitutions and courts in overseeing states’ setting of election rules.
Regardless, what if the court blesses the theory anyway? At least four justices have potentially signaled openness to doing so.
This notion is called the independent state legislature theory. An article on the subject here.
The Constitution refers specifically to the “legislature” in each state determining the time and manner of federal elections.
Backers of the “Independent State Legislature Claim” argue that since the Constitution doesn’t name other parts of state government – including courts – they should have no power to check the legislature on the subject of federal elections. Even if a state’s constitution or laws give power to courts or a governor, the theory argues legislatures should be able to ignore them.
The seeds for this idea, according to the liberal-leaning Brennan Center for Justice, come from a concurring opinion by then-Supreme Court Chief Justice William Rehnquist in the Bush v. Gore decision that settled the 2000 presidential election.
I visit and read quite a few right of center and "libertarian"websites including National Review and Reason. These kind of "We can do anything we want to do, we are a republic and not a democracy" positions are getting more and more prevalent. Saw one the other day that said that democracy isn't even mentioned by the founding fathers.
Here is a piece published by one Bernard Dobski, PHD for the Heritage Foundation. Pay close attention to the last sentence.
America is a republic and not a pure democracy. The contemporary efforts to weaken our republican customs and institutions in the name of greater equality thus run against the efforts by America’s Founders to defend our country from the potential excesses of democratic majorities. American republicanism and the ordered liberty it makes possible are grounded in the Federalists’ recognition that non-majoritarian parts of the community make legitimate contributions to the community’s welfare, and that preserving these contributions is the hallmark of political justice. But, the careful balance produced by our mixed republic is threatened by an egalitarianism that undermines the social, familial, religious, and economic distinctions and inequalities that undergird our political liberty. Preserving the republican freedoms we cherish requires tempering egalitarian zeal and moderating the hope for a perfectly just democracy.
We need to stop being so freaking egalitarian and stop hoping for justice already. Democracy?
Lindsey Graham said the other day that it would be foolish to abolish the electoral college, which has served to elect a multitude of Presidents who have lost the popular vote and subsequently appointed Supreme Court justices that have further exacerbated partisan gerrymandering and lessened the power of minority and urban voters. Screw the will of the people.
He mentioned that with a majority vote, New York and California would be running the show. Which I assume is worse in his eyes, than South Carolina running the show. Lindsey, the same guy who the Georgia Secretary of State, Brad Raffensberger, says kept pestering him to change votes in the last presidential election.
And I get that the founders might have been scared of the tyranny of the majority. But is the tyranny of the minority any less venal and specious? Because they are completely controlling this country, irrespective of the will of the people and are dismembering our freedoms one right at a time, right before our eyes.
If the Supreme Court empowers the state to do this sort of thing, it is all over.