YES, THE SUPREMES ARE BONKERS. NEXT ACT: ENDING FAIR ELECTIONS
IT’S A HOLIDAY WEEKEND, and you’re absolutely within your rights to take some well-deserved time off from thinking about the Supreme Court as you try to recover from its just-concluded term of terror.
How much can a citizen stand? There was the medieval abortion decision reminding women who’s the boss of them and their bodies. The planet-frying decision hobbling efforts to reverse climate change. The drive-by shooting down of a gun control law. The absolution the court granted to the praying high school coach and his worshipful football team.
But there’s something more dangerous on the court’s agenda for its new session that begins this fall, a case that could mean the end of fair and democratic elections. Sounds loony? I mean me. You're thinking that I’m sounding hysterical, over the edge, speaking in tongues, going, going and gone.
But I swear, it’s not me, but the court which has gone bonkers. It’s decided to take up a North Carolina case that promotes an interpretation the Constitution that Trump fanatics tried to use, but failed, as they attempted to overturn the 2020 election.
The issue is what's called the “independent state legislature theory,” a bizarre reading of the Constitution that would give state legislatures control of all aspects of voting – including substituting their own gang of Electoral College members to chose the next president, replacing the real electors pledged to the candidate whom voters actually chose at the polls.
But, you say, the courts wouldn’t allow that kind of chicanery.
Sorry – and this is the worst part – this theory says the state courts would not be allowed to intervene.
In other words, state legislatures would have what dictators and authoritarians have dreamed of forever: absolute power.
AS AN EXAMPLE of how this could work, let’s re-run the 2020 election, in which Joe Biden won the popular vote, as well as the Electoral College tally, which is why he is now president of the United States.
A reminder: voters in a presidential election vote for Candidate A or Candidate B. But the people who technically elect the president are members of the Electoral College, who are called "electors."
Each state is allocated as many electors as they have Senators and members House of Representatives. So tiny Rhode Island gets four electors – one for each of its two members of the House, and two more for each of its two Senators. These electors are pledged to cast their Electoral College ballots to reflect how real voters cast their ballots. Rhode Islanders voted for Biden; its four electors did the same.
But under the wacko “doctrine” that would give state legislatures exclusive control of elections, if the Rhode Island’s General Assembly didn’t like Biden’s victory, the legislators could appoint their own group of electors, who would then vote in the Electoral College for Trump. If other states did the same thing, then the worst president in history would still be making terrible history.
Call it crazy. Call it absurd. Call it un-American. Just don’t call it impossible.
With the Supreme Court just agreeing to review the North Carolina case, that means the court is seriously considering the independent state legislature doctrine. And we know after the court’s last batch of rulings that things could – actually, probably will – go very badly for the rest of us out here in normal, sane, common sense America.
DO YOU WANT TO HEAR the details? No, of course you don’t.
Me neither. I was catatonic the entire morning after after reading a tiny article that the New York Times practically hid at the bottom of Page One, stuck there perhaps by editors who didn’t want to spoil their readers’ July 4th holiday. But lots of other news outlets, including the Washington Post, had similar accounts.
The independent state legislature doctrine focuses on a couple of sections of the Constitution:
Article I, Section 4, Clause 1:
The 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.
(I have no idea what “the Places of chusing Senators” means, and I invoke my First Amendment rights in chusing not to waste my time or yours to find out).
Article II, Section 1, Clause 2:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
There’s been lots of debate about these clauses, but bottom line, we’ve come to expect that electors will do what voters tell them to do, and that elections will be run fairly, and if they aren’t, the courts will sort things out.
Nowhere in these sections, or in practice, does the Constitution prohibit state courts from intervening, as they normally do when legislatures go off the deep end.
But we know how extremists are: they see “day” but they read “night,” and in this case, they say that the Constitution says that legislatures can do as they please, because the sections use the word “legislatures,” but not the word “courts.”
Courts are always there to review whether the other branches of government, governors, presidents, legislatures are playing by the rules. And our democracy depends on the checks and balances in which the three branches of government keep each other in line.
The “executive branch,” the president, is a powerful figure, but not a king; and her actions can be limited by Congress and the courts. The legislature – the House and the Senate—is subject to a president’s veto and what the courts have to say. The courts can be limited by Congress, the president and ultimately by amendments to the Constitution.
It’s a foolproof system, except when fools are in charge, as they are in the right-wing, 6-to-3 majority of the Supreme Court and in more than half the country’s state legislatures, which are controlled by Trump-crazed Republicans.
Now, the North Carolina case is about whether House voting districts were fairly drawn, but it’s the independent state legislature doctrine within the case that scares experts. Here’s what some of them have to say.
First, an article by Ethan Herenstein and Thomas Wolf, lawyers for the Brennan Center for Justice at the New York University School of law:
The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors. Indeed, this isn’t far from the plan attempted by Trump allies following his loss in the 2020 election.
And here’s what U.S. Sen. Sheldon Whitehouse, a Rhode Island Democrat who also has been a U.S. attorney and a state attorney general, told the Washington Post:
This phony ‘doctrine’ is an anti-democratic Republican power grab masquerading as legal theory. It was cooked up in a right-wing legal hothouse by political operatives looking to give state legislatures the power to overturn the will of American voters in future elections.
Whitehouse went on to tell the Post that this was the same sort of scheme pushed by John Eastman, a Trump lawyer, as he and other Trumpsters tried to overturn the last presidential election, and it could plant seeds of chaos in time for the next one. The fact that the Court is even considering a case involving such an extreme idea shows how beholden it is to the right-wing donors who got so many of the justices their jobs. OVERRIDE THE WILL of the voters? Change the outcome of an election? Can’t happen here. Too outlandish. Too far out. Even this Supreme Court would never condone such outrageous behavior.
But we should ask people most affected by the Supreme Court’s recent rulings whether there’s a limit on the mischief the highest court can unleash.
Ask a woman who’s been forced to give birth against her wishes because the Supreme Court took away women’s half-century right to abortion. Ask her whether the court has gone bonkers.
Ask that woman’s kid what it’s like to be born on a planet that’s becoming uninhabitable, even as the Supreme Court decides that the nation’s environmental agency can’t control heat-rising gasses.
Ask the same kid how safe she feels on New York City streets after the court shot down one of state’s gun control laws.
Ask this kid if she thinks her chances of getting to play football will be improved if she joins the coach and the rest of the team in prayer, now that the Supreme Court has further blurred the lines between church and state.
While were at it, maybe the rest of us should ask the coach, the football team, everyone on the sidelines and in the stands, if we can join them in praying that the Supreme Court will come to its senses.
Please, please and please don’t let six black-robbed rogues go off the deep end, fall off the cliff, leap into the abyss and allow the end of fair and honest elections.
I'VE BEEN a reporter and writer for 58 years, long enough to have learned that journalists don't know very much, although I've met some smart ones. Mainly, what reporters know comes from asking other people questions and fretting about the answers. This blog is a successor to one inspired by our dog, Phoebe, who was smart, sweet and the antithesis of Donald Trump. She died Feb. 3, and I don't see getting over that very soon. Occasionally, I may try to reach her via cell phone.