Democracy to die by a thousand shortcuts
Of course, the case comes from North Carolina. Since regaining control of the state legislature with the 2010 election, Republicans have repeatedly probed for soft spots where democracy might prove vulnerable to attack. The phrase “with almost surgical precision” arose from a case here.
Now, a crank legal theory of “recent vintage” so half-Baked Alaska that only QAnon and supposed originalists on the U.S. Supreme Court could buy it is due for testing in Moore v. Harper, a case from North Carolina, writes Adam Sewer.
Under the “independent-state-legislature theory,” North Carolina Republicans argue that in our famed system of checks and balances, the Constitution empowers only state legislatures to set voting rules, unchecked by even the state’s supreme court (The Atlantic):
The justification for this theory is that the U.S. Constitution’s text about state legislatures setting election rules refers not simply to passing laws or adopting state-constitutional provisions regarding voting, but to an authority to decide such matters unilaterally. State legislatures themselves pass laws and participate in the process of adopting constitutional amendments; it makes no sense to argue, as the independent-state-legislature theory does, that such bodies are not bound by rules they themselves have set. Nevertheless, this idea is the kind of obtuse, context-free pedantry that malicious lawyers adore. As the election-law expert Rick Hasen writes, in its most extreme interpretation, this theory would mean that a state legislature could simply overturn federal election results it did not like based on its perception, no matter how unfounded, that the rules were violated. Hypothetically, the Supreme Court could check such abuse of power; its capture by the Republican Party means that, in practice, it might not.
That the country has never in its history operated like this is no barrier to the Roberts court’s entertaining the theory now. But the Republican Party wears democracy like decorative chiffon these days. Anywhere popular sovereignty might be, um, adjusted to ensure Republicans never lose is fair game.
The independent-state-legislature theory, as Republicans imagine it, would allow a state legislature “to throw out its state’s presidential-election results” should a GOP presidential candidate inconveniently earn fewer votes than the Democrat. Donald Trump attempted and failed at that for months following his 2020 loss to Joe Biden. Should the Supremes buy into the theory, Republican-controlled legislatures could do it without needing arm-twisting from a dime-store mafioso.
The implications of Moore v. Harper succeeding are staggering, Serwer explains:
The sheer number of catch-22s involved here can be confusing. Federal courts cannot review partisan gerrymandering, so the people should turn to state courts, which also can’t. If you want to protect voting rights, you must do it by federal legislation, except the Supreme Court will decide that that legislation is unconstitutional, because it violates imaginary principles unmentioned in the Constitution. Political questions must be decided by the people, except if those in power conclude that they don’t like how the people might decide them.
So this is how democracy dies, to paraphrase a legislator from a galaxy far, far away. By a thousand shortcuts.
This can all be reconciled given the Republican Party’s de facto position that elections are by definition illegitimate if the GOP does not win them, and that the Democratic Party’s constituencies are less American and therefore their votes should count for less. Counter-majoritarian mechanisms such as the Senate and the Electoral College have already allowed the GOP to win presidential elections and gain control of the Supreme Court without a majority of voters. The adoption of the independent-state-legislature theory would strengthen the party’s ambition to lock itself in power indefinitely regardless of how the electorate votes.
Vladimir Putin and Viktor Orban smile quietly to themselves.
Perhaps a national organization of non-white, non-straight, non-Christian former Republicans could make enough noise about such treachery to give domestic autocrats pause for reflection. But even as Donald Trump’s slowly star dims, the arc of the Trumpist universe does not bend toward self-examination. It bends toward Ron DeSantis.
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