We often hear about the US being a “republican form of government”. It follows directly from Article IV, Section 4 of the US Constitution, which emphatically declares: “The United States guarantees to every State of this Union a republican form of government.”
The ultra-conservative majority of the US Supreme Court appears ready to make minor changes to that language. That is, put a a republican state government, allowing state legislatures to set their own election rules without vexatious interference from their governors or state courts.
The Supreme Court will hear arguments later this year in Moore v. Harper, case that raises the question of whether a state legislature, acting entirely on its own, can make rules governing federal elections in a state, even rules that conflict with state law. The facts are that North Carolina’s Republican-controlled legislature approved a new redistricting plan that was struck down by the state Supreme Court earlier this year as “cruel and intentionally partisan.” The plan violated the state constitution, so it should have ended.
But controversy over some innocuous words in the U.S. Constitution has been simmering in right-wing legal circles since three Supreme Court members breathed life into them in 2000 in Bush v. Gore. The words of Article I, Section 4, say: “The times, places, and manner of holding elections for senators and representatives in each state shall be determined by the legislature thereof…” The North Carolina legislature asks the Court to rule that those words give it the final say over reapportionment. and presumably all other provisions for federal elections held in the state. Their idea is called the “Independent State Legislature Theory” (ISLT).
If the Supreme Court agrees with the GOP-controlled Legislature, it will be a boon for the Republican Party in two critical ways. First, it will allow GOP lawmakers, who are subject to the law, to self-regulate and approve voting rules that disadvantage all other parties. Governors, who are necessarily more politically moderate than legislatures subject to legislatures because they must appeal to state constituencies, and state supreme court justices who are either appointed by those governors or who must act in their own statewide elections would have no opportunity to resist these actions.
Secondly, Article 11, Part 1 of the Constitution uses similar wording regarding the appointment of electors to the Electoral College, that is, “each state appoints [Electors], in such manner as may be prescribed by the Legislature. A court ruling in favor of the Legislature would lend legitimacy to the efforts of GOP extremists to introduce alternative presidential electoral rolls in the 2020 election. What a gift for Judge Clarence Thomas’ wife, Ginny, who worked so hard to get lawmakers in at least two states — Arizona and Wisconsin — to submit alternate voter rolls favoring President Trump to the Electoral College. Judge Thomas has an obvious conflict of interest in this case and must recuse himself, even at the risk of marital discord in his own house.
While the decision on the lawmaker would be a major coup for the GOP, it would be a hammer blow to the rule of law in America. The idea that a state legislature, acting on its own, could set important substantive rules for the conduct of federal elections is a gross affront to the fabric of our constitutional system of checks and balances.
The writers of the constitution were guided by the idea that government power should be divided between three branches of government – executive, legislative and judicial, so that each branch could act as a check on the other branches. The legislature passes legislation, which becomes law only with the approval of the executive branch, and state courts have the power to rule on it. It’s that simple. The framers of our constitution would be baffled to think that our highest court could even consider a scheme as unfair as the legislature is peddling.
As many constitutional scholars have pointed out, there is no credible legal or historical basis for supporting the ISLT. The Conference of Chief Justices, made up of the chief judicial officers of the courts of last instance of the states and territories of the United States, has weighed in on the theory in brief, pointing to the serious dangers it poses to our federalist system. I have been a member of this group and can attest that it would only take such a step if it believed that the threat to national courts was extreme. The prospect that the Supreme Court could preemptively strip state supreme courts of the power to rule on unfair practices by state legislatures is a silly violation of the 10th Amendment to the US Constitution. The only support for the theory is a fraudulent document relied on by the Legislature in its Supreme Court legal brief.
Republican-appointed court judges have already done their party a great service by systematically restricting the voting rights of people of the other party. Adopting ISLT is a bridge too far given the lack of reliable legal, historical or common sense support.
The Supreme Court should overturn this case because it poses a serious threat to our democratic system. If we are to have an all-Republican government, let it be in a fair fight at the state ballot.
Jim Jones is a Vietnam War veteran who served eight years as Idaho Attorney General (1983-1991) and 12 years as Chief Justice of the Idaho Supreme Court (2005-2017).