If you adhere to the basic principle that in a democracy the citizens pick their leaders, what happened in the waning moments of the Supreme Court’s last term should alarm you as it has alarmed democracy advocates throughout the nation.
Lost in the wake of a half-dozen unhinged majority opinions issued in the last week of the term, the Court decided to hear a redistricting case out of North Carolina, with direct impact in Pennsylvania as well, raising a fringe constitutional argument known as the “independent state legislature” theory.
The decision to hear argument in the case of Moore v. Harper signals that the Court will seriously consider, and is very likely to adopt, a theory that will render meaningless your vote if you happen to live in a state like Pennsylvania, where Republicans control the state legislature. If it was not already clear, the decision to hear argument in this case solidifies that the Supreme Court, more specifically, the six radical right-wing Justices packed into the Court, are the single greatest threat facing our democracy.
We now have only months left to preempt this looming threat.
The Independent State Legislature Theory Is Incompatible with Democracy
The independent state legislature theory is incompatible with the basic principle of democracy that citizens pick their leaders. It is a chilling and entirely made-up doctrine, hatched from a concurring opinion by then Chief Justice William Rehnquist in the infamous Bush v. Gore case, without any rooting in the Constitution or in US history.
The theory interprets the word “legislature” in the Constitution to mean that state legislatures – and only state legislatures – can regulate elections. It rests on the fact that Article I’s Election Clause states that the “Times, Places and Manner” of congressional elections, “shall be prescribed in each State by the Legislature thereof,” subject to an override by Congress. Similarly, Article II gives “the Legislature” of each state the power to set the “Manner” of choosing presidential electors.
This exclusionary interpretation of the word “legislature” is a stark departure from the standard interpretation, where “legislature” means the state’s entire lawmaking apparatus. The Republicans pushing for this extreme interpretation want to exclude the governor, the state courts, and citizen-led ballot measures from having any role in federal elections. By excluding all these other parts of the state government, the theory would grant all the power to set election rules and congressional maps to the state legislature – unchecked by the governor’s veto, the state courts, the people themselves, or even the state constitution.
Every State Controlled by Republicans – Including Pennsylvania – is a Target
Today, Republicans have control over 30 state legislatures, including in Pennsylvania, where adoption of the independent state legislature theory will eradicate, overnight, over 30 years of effort to secure fair congressional districts. Pennsylvania’s Constitution, as interpreted by our State Supreme Court, bans partisan gerrymandering through its free election clause.
Recall Pennsylvania’s partisan congressional maps in place after 2010 that effectively cemented a 13-5 Republican advantage in an otherwise evenly divided state. This unconstitutional map demonstrates how an unchecked state legislature could use sophisticated computerized models to draw maps with what one court called “surgical precision,” effectively letting politicians choose their voters instead of the other way around.
In 2018, the Pennsylvania State Supreme Court ruled that these gerrymandered maps violated the Pennsylvania Constitution and ordered new congressional district maps that achieved a fair partisan balance. The maps since 2018, and those in place now, thanks to critical checks from our State Supreme Court and the Governor, meet all the hallmarks of fairness, insofar that they are non-partisan, compact, minimize county and municipal splits, and preserve communities of interest. If the GOP-controlled legislature had not been checked, Pennsylvania’s congressional maps could likely be drawn in a way to limit Democrats to three or possibly fewer congressional representatives.
Pennsylvania and North Carolina have been on remarkably similar trajectories when it comes to the battle over congressional maps. Republican politicians in Harrisburg, like those in Raleigh, North Carolina, livid at having to play fair, and fueled by an electorate that has lost faith in elections thanks to the Big Lie proponents like seditionist and GOP gubernatorial nominee Doug Mastriano, have explored different strategies to gain unchecked power. In addition to pushing proposed constitutional amendments to avoid the Governor’s veto or adverse rulings from the state supreme courts, the GOP in both states have also filed lawsuit after lawsuit, testing every conceivable legal argument to challenge the fair congressional maps. The independent state legislature theory was widely regarded as among the most fringe and frankly craziest of the arguments pushed by the Republicans.
Until the final seconds of the Supreme Court’s last term, the proponents of fair maps in Pennsylvania and North Carolina had been successful in fighting back the GOP onslaught, prevailing in nearly every round to keep these maps in place. When the Republican-controlled North Carolina legislature drew congressional maps, they were challenged and declared to be partisan gerrymanders in violation of the North Carolina constitution. Like in Pennsylvania, North Carolina drew fair maps for the upcoming 2022 election at the insistence of their Supreme Court.
The North Carolina and Pennsylvania GOP then turned to the US Supreme Court, and citing the fringe independent state legislature theory, they first tried unsuccessfully to persuade the Supreme Court to use its “shadow docket” to block the fair maps. Although the Supreme Court denied that request, to the shock and dismay of many pro-democracy advocates, the Supreme Court agreed to hear the case in full next term.
Disturbingly, in litigation surrounding the 2020 elections last year, conservative Justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh signaled a strong interest in the independent state legislature theory, with the first three all but embracing the theory in their dissent.
The US Supreme Court’s Most Underrated Power
The mere fact that the US Supreme Court decided to hear this case is profoundly disturbing. The Supreme Court, unlike the federal courts below it, has the power to pick and choose the cases it hears. Each year, the Court receives between 7,000-8,000 petitions for a writ of certiorari and the Court grants and hears argument in about 80 cases. The fact that one of those 80 cases for its next term will consider the viability of the independent state legislature theory is, in and of itself, a dangerous sign for democracy. This is particularly true given the current makeup of the Court, where a 6-3 right wing supermajority has shown little or no deference to precedent, and has been willing to adopt far-fetched legal theories in service of political or ideological goals.
In the last week of its final term, from June 23 to June 30, the Court issued a devastating series of decisions:
– In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade and permitted the near total prohibition of abortions in many states, including in some places for children who are raped and become pregnant as a result of that rape.
– In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court struck down efforts to license concealed weapons, including by states with densely populated cities, making it easier to carry guns in and around crowded locations.
– In West Virginia v. the Environmental Protection Agency, the Court used a fringe theory known as the “major questions doctrine” to severely restrict the EPA’s authority to regulate greenhouse gases. Adoption of the major questions doctrine will make it significantly more difficult for any federal agency to address new or developing problems, including looming catastrophes resulting from climate change. Like the independent state legislature theory, the major questions doctrine was concocted in a right-wing think tank and has no basis in history or in the Constitution.
– In Oklahoma v. Castro-Huerta, the Court dramatically undermined native American tribal sovereignty.
– In Vega v. Tekoh, the Court again undermined the rights established by Miranda v. Arizona, and expanded immunity for police officers who violate those rights.
– In Kennedy v. Bremerton School District, the Court tore down the wall between church and state in public schools, permitting a coach to lead a public prayer group with his students in the middle of the 50-yard-line.
– Finally, in Biden v. Texas, the Court was just one vote shy of forcing the Biden Administration to retain Trump’s “remain in Mexico” policy in dealing with migrants. The Supreme Court came dangerously close to substituting the will of federal circuit judges for the administration when it comes to setting foreign policy and dealing with foreign nations.
Moreover, the conservative justices on this Court have repeatedly shown particular antipathy to voting rights. In its 2013 decision in Shelby County v. Holder, the Court gutted the crown jewel of the 1965 Voting Rights Act. In a series of cases since then, the Court has prevented federal courts from intervening to prevent partisan gerrymandering of congressional districts.
In 2020, in a 5-4 ruling in Republican National Committee v. Democratic National Committee, the Supreme Court forced the citizens of Wisconsin to choose between voting and protecting their health. After many polling places were closed, including 157 in Milwaukee (leaving only five open in the entire city), the Court held that citizens could not challenge voter suppression on the eve of an election.
Last year, the Court considered a series of emergency motions in cases challenging various forms of voter suppression, and sided with the states that engaged in the suppression every time.
Even this year, again on its shadow docket, the Court barred federal courts from requiring states to correct unconstitutional congressional maps before the 2022 midterm elections. Most outrageously, in Merrill v. Milligan, the Court stayed a decision of a lower court that sought to impose fair maps after the Alabama legislature had adopted maps that deliberately diluted the power of black and Democratic voters, in clear violation of the Voting Rights Act.
Notably, the Court cited another fringe doctrine the so-called “Purcell principle” to keep the unfair maps in place, claiming that electoral changes that occurred too close to an election (nine months away) will confuse voters. For this Supreme Court, speculation about so-called “voter confusion” is a greater sin than actual voter disenfranchisement.
As further evidence that these fringe theories are being enlisted by the Court to advance partisan political objectives, the Purcell principle was used to disenfranchise Black and Democratic Alabama voters under the theory that their dispute was presented too late for the federal courts to intervene. Too late, despite the fact that the unconstitutional maps were disputed within one day of those maps being adopted by Alabama. If voters cannot bring their claims within a day following the approval of the maps, then it is impossible to give any relief to disenfranchised voters.
It is evident that we have a supermajority on the Supreme Court that is: (A) hostile to voting rights; (B) unmoored from precedent; and (C) willing to use fringe legal theories to advance partisan political ends.
What Could & Will Go Wrong
The impact of the Supreme Court’s adoption of the independent state legislature theory will be immediate and devastating. Next June, when the Court issues its decision in Moore v. Harper, it will relegate Democrats, minorities, and anyone else who cares deeply about preserving and strengthening democracy, to forever minority status – even in states where we are the majority.
In its most unhinged iteration, the theory is the very same one that insurrectionist lawyers John Eastman and Jeffrey Clark were pushing to overturn the results of the 2020 election. State legislatures fully empowered by this theory with ultimate authority over how elections are run, can simply decide to throw away the electoral outcomes and hand in ballots of fake electors.
In an equally destructive interpretation of the theory, the Pennsylvania and North Carolina Republicans are arguing that their grotesquely gerrymandered versions of the congressional maps must be adopted by the respective states. In other words, the Republicans in the state legislature in Harrisburg are the only ones who can establish the congressional maps and they have the sole and ultimate authority to draw them any way they choose to do so. This would remove the critical checks in a functioning democracy provided by state and federal courts, governors, and secretaries of state. The Republicans in Harrisburg will use algorithms to supercharge partisan gerrymandering in Pennsylvania, creating convoluted district boundaries that will ensure that their party remains in control of congress. The Democratic leaning suburbs outside of Philadelphia will be severely gerrymandered to dilute the power of these voters.
The GOP legislature’s authority will extend beyond maps to every aspect of elections. The state legislature will decide everything including, whether drop boxes are available, if we can still vote by mail, and if ID is required. It can determine the number of polls in cities, and deliberately make voting more difficult for minorities. It can restrict early voting, and can implement policies where voters are purged from the rolls every year – compelling everyone who wants to vote to re-register. The legislature can also make it easier to harass and intimidate voters by permitting out of county partisans to brandish weapons under the guise of “poll watching”. Here in Pennsylvania, voters would be left to the whims of characters like Mastriano, who has not met a form of voter suppression he has not endorsed.
By unleashing unchecked control over elections, the Supreme Court is getting ready to turn the keys for running the entire country over to the most extreme faction of the GOP in history. The Supreme Court will obviate the need for a violent, fascist right-wing coup by giving legitimacy to the anti-democratic theories advanced by many of the same lawyers who advised Trump on how to overthrow our democracy.
We essentially have less than one year to do everything we can to avert the coming crisis. Our democracy is in a “break glass in case of emergency” moment.
This article was originally published July 21, 2022.
