That there are three Supreme Court justices ready to end free and fair elections in the United States is a crisis in and of itself.
Thankfully, for now those three robed fascists with billionaire sponsors – Clarence Thomas, Samuel Alito, and Neil Gorsuch – are in the Court's minority on a fundamental question of how presidential elections are to be decided in the US. On Tuesday, the Supreme Court ruled 6-3 in Moore v. Harper against the bad-faith notion that state legislatures can regulate federal elections free of the checks and balances imposed by state law – an idea bandied about on the far right for at least two decades, as Republicans sought more permanent and reliable ways to steal elections. And yes, a bad-faith interpretation of the U.S. Constitution was key in pushing this theory; no one actually believes the nation’s founders wanted state legislatures to appoint the president, but one has to pretend that was their intent if the notion is to hold up in court.
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The insane legal notion – known as the independent state legislature theory – would allow Republican-majority state legislatures to award the state’s electoral votes to the GOP presidential candidate even if said candidate did not win a majority of votes in that state. Democratic-held legislatures could also engage in overturning the popular will. But the advantage would lie with Republicans, who control 28 of the nation’s 50 state legislatures. I think it’s safe to say the right-wing legal think tanks that birthed the independent state legislature theory are aware of this discrepancy in legislative control.
We saw a version of this absurdist legal theory in the months after the 2020 presidential election. Donald Trump and his flailing surrogates tried like hell to normalize the idea that states with Republican-majority legislatures that went to Joe Biden could in fact send their own electoral slates to Congress, where they would give Big Daddy the W after the people of their state had said otherwise. This – in a big fucking heaping of bad faith – was a legitimate way to counter the corruption that had cost Trump re-election (the shock over Trump’s loss has a lot to do with how popular he was (is) in the vile right-wing media circles in which Republican voters exist; the disconnect from the real world – in which Trump was the most unpopular incumbent in history – was impossible to bridge for right-wing broken brains).
The Court ruling against such a lawless proposal – brought to you by the radicalized North Carolina Republicans who have taken a gerrymandered buzzsaw to the state – is a big win for anyone who values fairness in our elections. It’s OK to be somewhat happy about a Supreme Court ruling that, for now, saves American representative democracy. I grant you permission, loyal Bad Faith Times reader, to crack a smile after John Roberts and Brett Kavanaugh sided with the Court’s liberals to kill the independent legislature theory once and for all. At the very least, the Court’s ruling in Moore v. Harper tanks my closely-held theory that the American coup would be a peaceful one, dressed up in the guise of legality.
Cameron Kistler, legal analyst for Protect Democracy, a voting rights advocacy group, said the Republican effort to subvert presidential elections has been swept away largely because the Court’s ruling was partially based on conservatives’ precious “originalist” legal interpretation.
More importantly, the Moore decision didn’t just rely on existing precedent: it also engaged in an extensive originalist analysis of founding-era practice showing that state constitutions regulated federal elections at the time of the founding. That combination — the reaffirmation of existing precedent and the recognition that a proper originalist analysis precludes adoption of the independent state legislature theory — should ensure the independent state legislature theory is dead.
The three anti-democracy justices on the Supreme Court, Kistler said, won’t get another shot to give Republicans permanent control of the White House.
For now, at least, the prospect of federal courts regularly second-guessing state court interpretations of state law is relatively unlikely for a few reasons. For one, the analogies that the Moore majority used in its opinion for when interventions by federal courts are appropriate — such as interpretations of contracts that are so erroneous so as to violate the Constitution’s Contracts Clause or interpretations of property law that are so erroneous so as to constitute an unconstitutional taking of property — are the sort of thing where federal courts rarely, if ever, intervene. For another, while federal courts already have the ability under the Due Process Clause to second-guess state court interpretations of state law, they have rightfully articulated a very high standard for doing so. The result? Federal courts have only found state court interpretations of state election law to violate the Due Process Clause a small handful of times. And finally, federal court intervention in such circumstances — such as state officials or state courts radically reinterpreting state law to unexpectedly disenfranchise voters — may be a tool that creative lawyers can use to protect voting rights and prevent election subversion.
The Cheating Will Continue Until Morale Improves
Political orthodoxy said for a long time, starting in the late 1990s, that the Republican Party as we know it was destined to implode due to demographic changes in the US. This misguided and childishly simplistic belief led to two deeply unfortunate political outgrowths: Complacency among both centrist Democrats and progressives, and the wild-eyed, fascistic, murderous White Replacement theory on the right that a vast left-wing project was determined to flood the United States with immigrants of color who would dutifully vote for any and every Democrat on the ballot.
The former belief has eroded under the depressing conditions of late-stage capitalism. Class dealignment has taken hold over the past two presidential election cycles, warping generations worth of class-based electoral fundamentals and giving Republicans a path to posing as a workers party (in complete bad faith, naturally). We have working class Latino and Black voters siding with Republicans in increasing numbers while college-educated, mostly well-off white folks are voting Democrat. It’s a toxic phenomenon that will create awkward political coalitions on the left and drive working-class people further into the unending misery of capitalism in its collapsing-star phase.
Demographics, it turns out, are not destiny. And we can expect Republicans on the state and federal level to continue to create edges in the voting rights game with slick legal theories that torpedo the civil rights gains of the 20th century. In other words, the death of the independent state legislature theory does not mean conservative lawmakers will stop cheating and undermining fundamental protections for who can vote in American elections.
Attacks on voting rights and access have reached record highs after Big Daddy’s 2020 defeat. In Florida, Ron DeSantis has instructed cops to stop his political opponents from casting votes. Five states, including Florida, Arkansas, and Georgia, have enacted election interference laws over the past year. In a brazenly illegal move, Texas Republicans removed election administration from officials in Harris County, a diverse haven of reliably Democratic voters. Seven Republican-held legislatures have imposed strict limits on mail-in voting. Florida, that fascist, lawless swampland that should be taken over by the federal government, passed a law that would shut down most voter registration drives ahead of the 2024 election.
Before you despair – and I know how much you love to despair – consider the good shit Democratic-majority state legislatures have done to protect and expand ballot access in 2023. Thirteen states passed 19 pro-voting laws during legislative sessions this winter and spring, according to the Brennan Center for Justice. Part of Minnesota Democrats’ no-faith legislative massacre of the state’s right wing included restoring voting rights for people with a felony conviction.
Democrats should have a singular goal when they take over a state legislature, as they did in Michigan and Minnesota last year: To expand and protect voting rights by any means necessary. Without this, there is no path to a lasting majority. While congressional Democrats shored up mechanisms meant to prevent another Republican insurrection, nearly 600 pro-voting bills have been introduced in state legislatures since January 1 – a clear sign that Democratic legislators are finally, at long last, recognizing the existential threat posed by the Republican Party’s full turn against representative democracy. So we have that going for us, which is nice.
We know a few things about the modern day, Q-pilled Republican lawmaker: They are afraid of everything, they think the government is coming for their gas-powered stoves, and they do not ever take no for an answer. That John Roberts helped end the horrors of the independent state legislature theory does not mean we have entered a new era of voting rights expansion. Quite the opposite. Just as Republicans are plowing ahead with inhumane anti-trans laws despite those laws being outright rejected by the courts, they will stop at nothing to roll back voting access for constituencies that favor Democrats. Because Republicans want to win, and the most direct path to winning in politics or sports is to cheat.
They will use a raft of carefully designed bad-faith arguments that forge a reality in which George Soros and his minions are stealing elections from conservatives on every level of government. The public’s rejection of Republicans’ economic austerity and hateful and vindictive social policies means they will have to continue cheating if they are to compete in 2024 and beyond.
Without subverting representative democracy, Republicans are a permanent minority party. They know that and will operate accordingly.
Follow Denny Carter on Twitter at @CDCarter13.