The supreme court denied a wild election theory.
But don’t relax yet
David Daley
The ‘independent state legislature’ theory was a
terrifying threat to voting rights and never should have made it this far
Wed 28 Jun
2023 11.00 BST
Such is the
dismal state of the US supreme court that it is genuinely surprising any time
the court’s conservative supermajority turns down an opportunity to further
distort American democracy to the benefit of their partisan benefactors and
enhance the prospects of enduring one-party minority rule.
Moore v
Harper – the case from North Carolina involving the so-called “independent
state legislature” (ISL) theory, the ludicrous notion that state legislatures
have a free hand when it comes to election law and redistricting, unfettered by
pesky state constitutions, state supreme courts or even gubernatorial vetos –
was satisfyingly swatted away on Tuesday by a 6-3 majority.
This
theory, spawned from a footnote in the then Chief Justice William Rehnquist’s
concurrence in Bush v Gore, and nurtured for two decades in the hothouse of
conservative legal academia, lacks any grounding in American history,
represents a terrifying threat to elections as we know them, and should never
have made it this far in the courts.
The
decision, written by Chief Justice John Roberts, makes it clear that the
constitution’s elections clause does not carve out an exception to the
fundamental principle of judicial review. “When state legislatures prescribe
the rules concerning federal elections, they remain subject to the ordinary
exercise of state judicial review,” Roberts wrote, in a decision joined by the
court’s three liberals and justices Brett Kavanaugh and Amy Coney Barrett.
It’s good
news and a welcome sigh of relief. Taken to its extreme – as seems to be the
practice in so many conservative state legislatures these days – the ISL theory
could have handed state legislatures, many already deeply gerrymandered and
beyond the control of state voters, dangerous unchecked powers with regard to
election certification and presidential electors. And it could have removed
state courts, constitutions, governors and potentially even independent
redistricting commissions and ballot initiatives as any meaningful check on
runaway legislatures.
But while
the headlines proclaim victory for American democracy, and supreme court
reporters hoist the chief justice back on their shoulders as a great centrist
hope, it’s far too soon to celebrate. Buried within the details of this
decision, as well as a short concurrence by Kavanaugh, are the seeds of future
cases to come. This decision is hardly the silver bullet antidote to take down
this dangerous zombie notion once and for all.
The court’s
decision makes clear that the elections clause does not liberate state
legislatures from state constitutions and state law, but also that federal
courts must not abandon their duty to exercise judicial review. “This Court has
an obligation to ensure that state court interpretations of state law do not
evade federal law,” Roberts writes.
Furthermore,
state courts, according to the decision, must “not transgress the ordinary
bounds of judicial review such that they arrogate to themselves the power
vested in state legislatures to regulate federal elections”.
What does
that mean? The court does not tell us. As the NYU law professor Rick Pildes
points out, the decision does not adopt any standard at all, set any boundaries
whatsoever, or even rule on whether the North Carolina state court exceeded its
role. We head into the 2024 presidential election without any sense of what the
federal courts believe to be an appropriate and non-transgressive role for
state courts to play.
That means
that one of the most important lines from the decision might be this one from
Kavanaugh’s short concurrence: “In other words, the Court has recognized and
articulated a general principle for federal court review of state court
decisions in federal election cases. In the future, the Court should and
presumably will distill that general principle into a more specific standard
such as the one advanced by Chief Justice Rehnquist.”
The court’s
decision invites future cases. (Kavanaugh issued a similar invitation for
future cases in a short concurrence in the Alabama redistricting case this
month that affirmed what remains of section two of the Voting Rights Act.) They
may arrive in the days after the 2024 presidential election. And they could
prove crucial in deeply gerrymandered Georgia, Wisconsin and Arizona, three
extraordinarily close states that provided President Biden’s electoral college
victory in 2020 with the slenderest of margins, and where election deniers,
some in the state legislature, made mischief with the results.
A court
that has already proven, time and again, its willingness to put the thumb on
the scale for its own side in cases at the heart of American democracy may
decide those future cases on a case by case basis, with no clear standard at
all, based on how the individual justices feel about that state supreme court’s
interpretation, and perhaps the consequence of that ruling. It’s an
uncomfortable position to begin a presidential election, given the fact that,
in many states, election deniers are in a stronger place today than they were
on 6 January 2021.
There are
so few moments to breathe easier these days. Today’s surprising reasonableness
from the court offers a respite. It may only be a brief one.
David Daley
is the author of Ratf**ked: Why Your Vote Doesn’t Count and Unrigged: How
Americans Are Battling Back to Save Democracy. He is a senior fellow at
FairVote
Sem comentários:
Enviar um comentário