Many of us know America is not and never has been a democracy. We know the two-party system is designed to provide the elusion of choice when in reality both parties serve their corporate masters and the wealthy at the expense of everyone else. But next year the Supreme Court could rule so that state legislatures have the sole power to define federal elections. If this happens, American elections, as you will see, will actually be largely meaningless.
The Supreme Court has agreed to hear a case from North Carolina over the gerrymandered electoral maps produced by the state’s Republican-controlled legislature. Relying on data and witnesses, the North Carolina Supreme Court determined the gerrymandered maps would make it all but impossible for Democrats to compete in 10 of the state’s 14 Congressional districts. Realizing the lack of democracy, the state supreme court threw out the gerrymandered map and the Republicans sued.
The United States Supreme Court upheld the use of the maps favored by the North Carolina Supreme Court in the spring. But now the United States Supreme Court has agreed to hear a case arguing the so-called Elections Clause gives state legislatures the sole power to define federal elections in their states.
The Elections Clause is found in Article I, Section 4, Clause 1 of the Constitution and says: The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter regulations, except as to the places of choosing Senators.
I wanted to write this post after reading several news stories that did not contain the full text of the Elections Clause. In everything I have read about the case from North Carolina, the part of the clause giving Congress the right to override state legislatures has been omitted. I’m not sure of the reasons behind the consistent omission of Congress’s ability to alter election rules at the state level, but that Congressional authority could be critical as soon as 2024.
As you can see, the Elections Clause expressly gives state legislatures the ability to determine the times, places, and manner of electing senators and representatives. The clause says nothing about state legislatures determining the composition of their state’s delegation to the Electoral College or even the ability of state legislatures to establish Congressional districts.
But Republicans have for years been promoting a theory lawyers associated with the Federalist Society developed known as the independent state legislature theory.
The argument behind the theory is that the Elections Clause gives state legislatures the sole power to define the way federal elections are carried out in their states. Republicans, who want everyone to believe they are adhering to the original intent of the “founding fathers,” argue that the Elections Clause gives state legislatures the power to determine everything from the geography of Congressional districts to the ways people can vote in elections with no input from the governor, state courts, or even federal courts.
If the Supreme Court adopts this right-wing madness, that cannot be found in the text of the Elections Clause, state legislatures will be able to gerrymander free of any political consulting with the governor and absent any judicial review. State legislatures will be able to determine with no input from anyone else how, when, and where people can vote.
Taken to its extreme, state legislatures could draw maps making it almost impossible for another party to win any seats. They wouldn’t need to consider demographics, like race, when configuring districts. They could limit the number of polling places, the hours of voting, and the number of voting machines in certain areas, while providing greater access to the polls in other areas.
In its most outrageous form, state legislatures could determine their state’s delegation to the Electoral college, making the vote of the people meaningless in presidential elections.
If any of this is to come to fruition, elections in this country will largely be meaningless. The two parties would be free to draw districts ensuring no competition for most House seats. They could enact voting restrictions making it much harder for people who are likely to vote for the opposition to vote at all.
Currently, Republicans control 30 state legislatures. If the Supreme Court backs this batshit, crazy theory (that is not supported in the text of the constitution), American elections will actually be meaningless, unless Congress acts. Since the Republicans are likely to hold the House after November’s election, there is a chance the 2024 election will be decided under anti democratic conditions the likes of which America has not seen in more than a century.