More than one way for SCOTUS to screw democracy

19 July 2022

“Extremist justices are aiming their next dagger at the heart of the entire democratic enterprise,” says law professor Lawrence Tribe. “The Supreme Court’s next move could fundamentally change our democracy” warns the Post. It’s a “body blow” said the law professors behind the podcast Strict Scrutiny.

Got your attention? It certainly got mine.

There’s definitely something to worry about.

But let’s be clear about what.

How bad can things get?

The alarm is over the court agreeing to hear Moore v. Harper. The court could rule in favor of something called independent state legislature theory (ISLT).

As Eliza Sweren-Becker of the Brennan Center for Justice explains, ISLT is a fringe legal theory that “state legislatures [hold] near absolute power over the laws governing elections for federal office — leaving state courts, state constitutions, state governors and other state entities powerless to stop [them].”

Ring a bell?

That’s John Eastman’s memo.

You know, the blueprint for Donald Trump’s coup.

Courts took a dim view of cases tied to the Trump plot. But the problem of course – and the reason that the system is now blinking red for so many legal experts – is that fresh off the Dobbs decision, any reassurance that the court would never uphold a “debunked” constitutional argument is cold comfort.

After all, if the rightwing supermajority is willing to apply tortured legal reasoning to overturn half a century of what we thought was settled law, the fact that four justices are saying they are open to another equally radical view of our fundamental rights should be disturbing to say the least.

So if a fifth justice climbs aboard this particular crazy train and rules that ISLT is legitimate next year, how bad would it actually be?

More than gerrymandering

The Brennan Center’s Ethan Herenstein and Thomas Wolf summarize what we know for sure: “state constitutional bans on gerrymandering in Florida, Ohio, North Carolina, and other states could die, as could independent redistricting commissions in Arizona, California, Michigan and other states. Other state constitutional provisions – like the right to a secret ballot – could be wiped out.”

In other words, voter suppression could get a whole lot worse.

Remember, this isn’t just about gerrymandering.

A recent report documented that legislatures in 33 states are considering 229 bills that politicize, criminalize or interfere with elections. Fifty such bills have already been enacted or adopted. Under a pro-ISLT ruling, these laws could be totally illegal under state constitutions, but there would be nothing that state courts could do to stop them (and don’t expect federal protections either).

But what about the notion that democracy would be more fundamentally ended, in that people’s votes in federal elections would be made almost meaningless?

An illustration of that nightmare comes from progressive talk show host Thom Hartmann. He suggested a 2024 scenario in which “Biden won the popular vote in Georgia,” but “their legislature decided it can overrule the popular vote and just awarded the state’s 16 electoral votes to DeSantis instead of Biden.”

Almost as destructive

Fortunately, this isn’t likely to be the real danger.

Law professors Leah Litman, Kate Shaw and Carolyn Shapiro write that “even if the court embraces the revanchist ISLT, that would not permit state legislatures to throw out votes already cast to appoint presidential electors of their choosing.” As Herenstein put it to me: “ISLT is not a license to coup.”

But there’s a related and more subtle threat, almost as destructive.

Rick Hasen suggests that GOP-controlled legislatures could try to use any normal election rule issued by an administrator or state court as pretext to argue that the whole presidential election was not conducted in the way that the legislature directed (and remember, one flavor of election-subversion laws from Republican-controlled legislatures in the past year has been to give themselves the power to conduct shady partisan “audits” of election results, which would give them even more ammunition for such a claim), and therefore, that the legislature would be empowered to step in and pick the slate of presidential Electors.

Again, even if the court OK’s ISLT, that might not be legal.

But it would be confusing.

Clear anti-democratic damage

It could easily plunge our next post-election period into far worse chaos than we saw in 2020. Lawsuits would fly. Lower courts would be more willing to defer to legislatures’ decisions presuming a ISLT precedent set by the high court. A House GOP majority might accept a legislature-appointed slate of electors.

And ultimately, the court – with public credibility at a historic low – would be called upon to try to clean up the mess that it unleashed. And what would happen next? Think nationwide post-Dobbsprotests meets post 2016 election marches meets January 6.

We don’t know, but it isn’t good.

Luckily, we aren’t quite there yet.

As Thomas Wolf points out, four justices agreeing to hear a case is a long way from five justices issuing an extreme ruling on it. And Democrats have at least some control over the future here if they put the focus into key state legislative races that they deserve.

But we see the pathway ahead to clear anti-democratic damage, and if not a direct end to democracy itself, a prescription for turmoil and systemic meltdown. That’s plenty to be worried about.

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