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Just An FYI, The Supreme Court Is Going To Cancel Democratic Elections Next Year

Specifically DEMOCRATic elections.

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Election Voter SuppressionFuture generations will affix the word “infamous” to the freshly concluded Supreme Court Term with such regularity that it crosses into cliché.

Or at least they will if history books still exist by then. Which is an open question at this juncture because large swaths of the country seem content to erase such “woke Critical Race Theory” opinions like that from the collective memory. And the local politicians pushing for that future are about to score a big boost when the Supreme Court decides to cancel democratic elections next year.

Actually that’s not fair. Elections will still happen, the results just won’t matter.

The Supreme Court announced that it’s taking up Moore v. Harper, the North Carolina legislative maps case that invites the Court to endorse the “independent state legislature doctrine,” which is a very dry way of describing the end of a functioning democracy.

The crux of the theory is that when Article I, Section 4 says:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof…

It means ONLY the state legislature can decide how elections work in a state. The governor and more importantly the courts have no authority to tell a legislature how elections function. When state legislatures gerrymander themselves into unrepresentative bodies and then have unreviewable power to exacerbate that advantage you see where this is going.

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You might be asking yourself, “doesn’t Section 4 go on to say the federal government ‘may at any time by law make or alter such regulations’ debunking this crackpot theory within the span of the same sentence?” To you I say the Supreme Court wrote “well regulated Militia” and the Establishment Clause out of the Constitution, they’ve got no problem erasing text.

Consider states like Wisconsin where Democrats hold every statewide office except Ron Johnson’s Senate seat, but have only held both state legislative houses twice in 27 years and haven’t controlled either in 11 years. That’s where this theory has the most dangerous bite to the concept of popular rule — when Republicans can only control one branch of government, this doctrine seeks to give that one branch unilateral power.

Checks and balances replaced by “f**k you, that’s my name.”

Needless to say, the Supreme Court has roundly rejected this doctrine multiple times, noting that the Constitution consistently uses the term “legislature” to mean legislative power and not “the collection of people constituting the legislature” meaning the role of the executive and courts in the law-making enterprise are included. But since stare decisis is dead letter, the conservative justices are prepared to fling another century of precedent under the bus and the only justice who hasn’t weighed in on the question yet is Amy Coney Barrett and if that’s your life preserver you’re likely joining Jack Dawson at the bottom of the sea.

Most immediately at stake are partisan gerrymanders that lock off meaningful representation, but racial disenfranchisement or cutting off access to ballot machines in politically unfriendly areas are sitting directly off this exit ramp. States unilaterally naming alternate electors after a disagreeable presidential outcome is a little further down the road but you can see the sign from the highway.

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Enjoy the 2022 Midterms everyone, because this may be the last time voting has a tangible impact on government.

UPDATE: Jenner & Block’s Zachary Schauf, representing the North Carolina League of Conservation Voters in the case issued this statement:

“This case is about more than gerrymandering in North Carolina. It concerns a core principle from the earliest days of our Republic – that state laws governing federal elections are subject to the constraints that the people wrote into their state constitutions. We look forward to defending that fundamental tenet of democracy in the Supreme Court.”

Earlier: Republican Legislators Ask SCOTUS To Make Them King Of Elections, NBD

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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