How GOP-controlled state legislatures could pull off a coup in 2024: journalist

29 July 2022

When journalist Barton Gellman writes an article on the threats that U.S. democracy is facing, it’s a safe bet that he will give readers even more reasons to be worried. Gellman’s November 2020 articles for The Atlantic included headlines like “The Election That Could Break America” and the frighteningly prophetic “How Trump Could Attempt a Coup” — which, after the January 6, 2021 insurrection, were followed by a Gellman piece headlined “Trump’s Next Coup Has Already Begun” and published in The Atlantic’s January/February 2021 issue.

Eighteen months into Joe Biden’s presidency, Gellman sounds the alarm once again in an article published by The Atlantic on July 29. And this time, he explains why the U.S. Supreme Court — depending on how it rules in the case Moore v. Harper — could enable Republicans to pull off a coup d’état in the United States’ 2024 presidential election.

“Late last month, in one of its final acts of the term, the Supreme Court queued up another potentially precedent-wrecking decision for next year,” Gellman explains. “The Court’s agreement to hear Moore v. Harper, a North Carolina redistricting case, isn’t just bad news for efforts to control gerrymandering. The Court’s right-wing supermajority is poised to let state lawmakers overturn voters’ choice in presidential elections.”

In Moore v. Harper, the U.S. Supreme Court will be taking a look at what is known as the “independent state legislature doctrine” — which, if carried out, would allow state legislatures to simply throw out election results that they don’t like. The most extreme version of the doctrine would give state legislatures sole power over elections, removing a state’s executive and judicial branches from the equation.

“To understand the stakes, and the motives of Republicans who brought the case, you need only one strategic fact of political arithmetic,” Gellman warns. “Six swing states — Pennsylvania, Michigan, Wisconsin, Arizona, Georgia, and North Carolina —are trending blue in presidential elections but ruled by gerrymandered Republican state legislatures. No comparable red-trending states are locked into Democratic legislatures.”

Gellman continues, “Joe Biden won five of those six swing states in 2020. Donald Trump then tried and failed, lawlessly, to muscle the GOP state legislators into discarding Biden’s victory and appointing Trump electors instead. The Moore case marks the debut in the nation’s highest court of a dubious theory that could give Republicans legal cover in 2024 to do as Trump demanded in 2020. And if democracy is subverted in just a few states, it can overturn the election nationwide.”

In the past, the U.S. Supreme Court dismissed the independent state legislature doctrine or ISL as fringe nonsense. But in 2022, the U.S. has its most radical-right High Court in generations, and constitutionalists fear that the Court’s GOP-appointed supermajority of 2022 will agree with the doctrine — which, Gellman notes, “proposes that state lawmakers have virtually unrestricted power over elections and electors.”

“State courts and state constitutions, by this reading, hold no legitimate authority over legislatures in the conduct of their U.S. constitutional functions,” Gellman writes. “That is a genuinely radical proposition. It has never been accepted by any state or federal court, and the Supreme Court itself ruled as recently as 2019, in Rucho v. Common Cause, that ‘state constitutions can provide standards and guidance for state courts to apply’ in redistricting cases. In another redistricting case four years earlier, the Court confirmed long-standing precedent that ‘legislative’ powers are defined and controlled by state constitutions. The idea that legislatures stand unbound by any limit from their own founding documents is a fringe debating point invented for Republican political advantage.”

The journalist adds, “Even so, three justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — have spent two years campaigning for the independent state legislature doctrine in judicial statements and dissents. None of those writings carried the force of law, but together, they served as invitations for a plaintiff to bring them a case suitable to their purpose. A fourth justice, Brett Kavanaugh, wrote a concurrence in which he invited the North Carolina Republicans in the Moore case to return to the Supreme Court after losing an emergency motion. Where John Roberts and Amy Coney Barrett stand on the doctrine is unclear.”

According to Gellman, proponents of the independent state legislature doctrine “have their eyes on a bigger prize: the presidency.”

“If you give the legislature a blank check on the manner of appointing presidential electors, then a Republican majority could — in the most muscular version of ISL — simply disregard a Biden victory in the state’s popular vote and appoint Trump electors instead,” Gellman warns. “Even this Supreme Court might not go that far. It might acknowledge that, once having passed a law providing for a popular vote for president, a state legislature could not strip voters of that power after they voted. But in that case, ISL still offers plenty of room to overturn the people’s will…. The pernicious threat of ISL, wrote Richard L. Hasen, an election-law expert at UCLA, is that ‘a state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore, the legislature will take matters into its own hands and choose its own slate of electors’…. Moore could set the stage for a major shift in voting law in the run-up to the 2024 election.”

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