Obscured by the horrendous series of rulings at the end of its recently completed term (Dobbs, etc.) was what may prove to be something even worse: the announcement that next term, the court will hear a case that may bring about the end of popular government in this country and the establishment of permanent minority rule by the Republican Party. The case is Moore vs. Harper, an appeal by North Carolina Republicans from a ruling by the state supreme court striking down a Congressional redistricting map as unconstitutional under North Carolina’s constitution.
The appellant Republicans argue that under the bizarre “independent state legislature theory,” the state legislature has sole, and total control over all electoral activity in the state, while the executive, judiciary and even the voters, have none. For those interested in a detailed dissection of this utterly bogus theory and the related and equally nonsensical “textualist” theory of Constitutional interpretation, read “Textualism, Judicial Supremacy, and the Independent State Legislature Theory” by law professors Leah Litman, Kate Shaw, and Carolyn Shapiro in the Wisconsin Law Review (papers.ssrn.com/…
If the Supreme Court grants this appeal, the North Carolina legislature will be free, among other things, to select any Presidential electors it wants every four years, without being subject to review by any court, any action by the governor, or the will of the voters. Naturally this would also apply to the other 29 (!) Republican-controlled state legislatures, who already have come close to practical permanent control of many states by political gerrymandering, a practice protected by the US Supreme Court.
When asked about whether this decision would allow state legislatures to appoint their own Presidential electors in defiance of the popular vote, the lead attorney for the appellants said this: “If you ask me as a strictly constitutional and analytical matter, state legislatures can indeed recapture the power to choose electors themselves...” (emphasis added.) He then reassuringly added, “I can also tell you as a pragmatic matter, I don’t know of any state legislature that has done that.” (see Washington Post www.washingtonpost.com/…
and www.washingtonpost.com/...)
The fact that no state legislature so far has yet to exercise a power that, at the moment does not exist, falls short of reassuring me, especially in view of the attempts to do exactly this that have already been made by more than one Republican-controlled state legislature. If they are given this power, the Republican minority can quite legally establish itself as the permanent ruling party simply by ignoring the outcome of elections and appointing Republican electors every four years. Since they already have quasi-permanent control the majority of state legislatures through gerrymandering, ensure control of the Federal government as long as their grip on the states remains secure. Furthermore, this will also guarantee that future Supreme Court appointees will continue to make whatever decisions are needed to keep the Republican minority in power.
Are you afraid yet?