N.C. Republicans base “independent state legislature” case on a fake
Considering whoppers told by conservative nominees in recent Senate confirmations, is it any wonder North Carolina Republicans believe conservative justices will find “a 204-year-old lie” persuasive?
Representatives from the Brennan Center demolish N.C. Speaker Tim Moore’s (R) argument for the “independent state legislature theory” (Politico):
This fall, the court will hear Moore v. Harper, an audacious bid by Republican legislators in North Carolina to free themselves from their own state constitution’s restrictions on partisan gerrymandering and voter suppression. The suit also serves as a vehicle for would-be election subverters promoting the so-called “independent state legislature theory” — the notion that state legislators have virtually absolute authority over federal elections — which was used as part of an attempt to overturn the 2020 presidential election.
The North Carolina legislators’ case relies in part on a piece of paper from 1818. But there’s a problem: The document they quote in their brief is a well-known fake.
Peer back into U.S. history (some most regrettable) and names from South Carolina appear regularly: John C. Calhoun, Charles Pinckney, Preston Brooks, Strom Thurmond. Lindsey Graham is destined to join them.
Pinckney’s name is attached to the fake in question, a document he submitted in 1818 that, scholars surmise, was Pinckney’s attempt to sell history on the notion that he was the true father of the Constitution. James Madison responded at the time with a “detailed refutation of Pinckney’s document along with the rest of his copious notes from the Convention. It was the genteel, 19th-century equivalent of calling BS.”
For over a century, the document, says “a modern-day researcher,” is “probably the most intractable constitutional con in history.”
Not that that’s a problem for Tim Moore.
Here’s why. The Elections Clause of the U.S. Constitution dictates that the “times, places, and manner” of congressional elections “shall be prescribed in each State by the Legislature thereof” (unless Congress chooses to “make or alter” the rules). The framers understood this authority to be subject to the ordinary checks and balances found in state constitutions — for example, the governor’s veto and state judicial review. We know this, in part, because some framers themselves voted to approve state constitutions circumscribing the legislature’s power over congressional elections. We also know that the framers — Madison chief among them — deeply distrusted state legislatures.
The North Carolina legislators, however, would have the Supreme Court believe that, in assigning federal election administration to state legislatures, the framers intended to sweep aside the traditional checks and balances — preventing state courts, the governors and other authorities from policing partisan gerrymandering and voter suppression by the legislature.
And they point to Pinckney’s fraudulent document as proof. The plan Pinckney released in 1818 assigned the administration of congressional elections to “each state.” Proponents of the independent state legislature theory argue that, if the framers deliberately changed the chosen election administrator from the “state” to “the legislature thereof,” they must have meant to eliminate other state actors from the process.
North Carolina’s argument in Moore v. Harper is that, well, we’ve had it all wrong since the Constitution was ratified in 1788. Our wrongness has been discovered now just in time to ensure Republican-controlled legislatures can install Donald Trump or another Republican candidate as president should she or he lose the electoral college vote in December 2024.
If it wasn’t for bad faith, they wouldn’t have no faith at all.
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