Will democracy live or die?
Will democracy live or die?
Nov. 8 is coming, are you registered to vote?
The most foundational threat to American democracy has little to do with whether Donald Trump or Joe Biden runs for president in 2024. It depends on 9 unelected justices who serve for life.
And it’s why the midterms on November 8 are more vital to democracy than any in my lifetime.
As I wrote recently for The Bulwark, if the GOP takes over the House and the Supreme Court decides a case called Moore v. Harper as the GOP wants it to, it is entirely possible that Democrats will be locked out of the presidency for the foreseeable future, regardless of the popular vote and the Electoral College vote tally. Republicans will keep control of the White House because Republican state legislatures will say so.
How is that possible? Let’s take a closer look at Moore v. Harper
Moore v. Harper
Background: In February 2022, the North Carolina supreme court issued a ruling that a partisan gerrymandered congressional map violates the North Carolina constitution and ordered new maps to be drawn.
Of North Carolina’s fourteen seats, the map awarded Democrats only four — even though the popular vote is evenly divided. Statistically, the map is more favorable to the GOP than 99.9999% of all possible alternatives.
Political gerrymandering — that is, drawing congressional boundaries to lock-in power for one party over the other — is tolerated under federal law. In 2019, the Supreme Court locked the federal courthouse doors to lawsuits challenging political gerrymandering as unconstitutional. Even if a map is unconstitutional, it ruled, the question too “political” for judges to handle.
So in Moore, the voters instead challenged the North Carolina map under the North Carolina constitution in North Carolina state courts. And they won. North Carolina’s highest court held that “the 2021 congressional map constitutes partisan gerrymandering that, on the basis of partisan affiliation, violates plaintiffs’ fundamental right to substantially equal voting power under the . . . North Carolina Constitution.”
Why is this an issue in before the federal U.S. Supreme Court then? Because North Carolina legislators are arguing that under the U.S. Constitution they are above the law when it comes to making rules about federal elections. And they might win with this right-leaning Supreme Court.
Issue: Can state legislatures regulate federal elections free of any checks whatsoever?
The North Carolina state legislature’s argument hinges on something called the “independent state legislature theory.”
Article I of the Constitution states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
The independent state legislature theory basically argues that this language means that state legislatures — and only state legislatures — can make federal election rules, with zero accountability, unless Congress steps in (which it can’t do these days because of the filibuster).
Check out this Brennan Center video: Independent state legislature theory explained
What’s the worst that could happen?
It’s scary, friends.
Let’s say Republicans, including a majority of election deniers, win control of the U.S. House of Representatives in 2022.
Suppose as well that the Supreme Court in Moore holds that only state legislatures can make laws governing elections (Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and possibly Brett Kavanaugh have already signaled support for the theory) — and that any limits on election laws identified state court judges, governors, election officials and state constitutions are legally irrelevant.
After two years of incendiary political investigations in Congress, likely even including Biden impeachment proceedings, 2024 will bring a presidential election with a Democrat and a Republican on the competing tickets—maybe a Biden-vs.-Trump rematch, but it won’t really matter which candidates.
Republicans currently control 54 percent of all state legislative seats nationally. Come November 4, 2024, regardless of the popular vote, Republican legislatures could use their newly minted constitutional prerogative to decide the “law” governing that state’s election for president, and give the Electoral College votes to the Republican nominee. Not every state will need to take this action—the flipping of the results in just one or two states with GOP-controlled legislatures could suffice to thwart the national result.
The GOP-led Congress will undoubtedly abide by that decision in January 2025. And if the state legislatures fail to anoint a Republican president, the GOP caucus in the House of Representatives will refuse to certify the results. (The House breaks presidential ties under the Twelfth Amendment; the Senate does so for vice presidential deadlocks, so neither a Democratic-controlled Senate nor Vice President Kamala Harris will be able to stop this.)
This Court knows that the November midterm election will decide who has power in America for a long time to come. Voters need to wake up to this reality as well—and quickly.
The 2022 midterm elections will be held on Tuesday, Nov. 8, 2022. Early and mail-in voting is already underway.
All 435 U.S. House seats and 34 of the 100 Senate seats are on the ballot. Nearly 200 candidates are 2020 election deniers.
Do you have a confused, frustrated or disinterested non-voter in your life?
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