Columnist Bill Newman: Will the Supreme Court make elections meaningless?

  • The Supreme Court of the United States on Feb. 10 in Washington, D.C. Kent Nishimura/Los Angeles Times/TNS

Published: 8/5/2022 3:03:11 PM
Modified: 8/5/2022 3:00:04 PM

If you believe that recent Supreme Court decisions jeopardize both liberty and democracy, you’re right. If you think the worst is over, you’re wrong.

The pillars of freedom in the United States are democracy and liberty. Democracy is a political system of majority rule. Liberty guarantees individuals rights that the majority cannot take away and functions as the counterweight to potential exploitation by the majority. Equality is an essential element of both pillars.

The Supreme Court recently has undermined democracy by gutting the federal Voting Rights Act, endorsing voter suppression and negating any federal court responsibility to remedy blatant partisan gerrymandering. The court also has undermined liberty with its rejection of a constitutional right to privacy, its renunciation of the right to reproductive choice and its movement last term toward state-sponsored Christianity as it dismantled the wall of separation between church and state.

The justices, to be sure, still invoke the veneer of neutral judicial decision-making. But their ladened word salad opinions leave little doubt that the supermajority has turned the court into an overtly political branch of government where the justices’ political ideology and religious beliefs are paramount. In recent cases, the court’s supermajority has dispensed with precedent, invented new legal theories and ignored and invented facts in order to arrive at their desired result. Alice in Wonderland has been elevated to constitutional status: first the verdict, then the trial.

Here’s what’s coming next. The court has put on its docket for this fall a case from North Carolina that could result in the installation of right-wing Trump-like politicians in state and federal offices, including the presidency, for decades to come. Buckle up. This is not hyperbole.

The case, Moore v Harper, comes from North Carolina where the Republican-controlled legislature drew an appallingly gerrymandered congressional map in violation of that state’s constitutional prohibition against gerrymandering. Not surprisingly, the state’s Supreme Court blocked implementation of the plan, but then the Republican speaker of the North Carolina House petitioned the United States Supreme Court for review. The speaker claimed that the state courts have no authority to hear a state case about state laws that violate the state constitution. Sounds bonkers — right?

Don’t be so sure. The legal argument that the state is advancing is called the independent state legislature theory. That theory posits that a state legislature has the first, final and only word about elections and that the state courts can do nothing — that no legal challenge is possible — no matter how egregiously the state legislature or other relevant state officials have violated the state constitution.

This theory would allow state legislators to draw with impunity unreviewable, biased and unfair congressional maps; to substitute their decisions for that of the voters in state and federal elections; and — to be clear — in a presidential contest to designate as the winner the candidate who lost. This is what Donald Trump sought in 2020 and still seeks.

Not long ago the independent state legislature theory was considered a fringe, far right-wing idea. Now it appears that at least four justices are devoted to making it the law of the land. It only takes five.

This legal result is rooted in the fact that state laws govern elections, including federal elections. The federal Constitution, with regard to the Electoral College, provides that “(e)ach state shall appoint … a number of electors … in such manner as the Legislature thereof may direct.”

The constitution also grants to state legislatures the power to prescribe “the times, places and manner of holding elections for senators and representatives.”

The Republican right wing, which controls state houses in swing states, contends that this language gives them the right and power to pick the presidential electors regardless of the popular vote or state law. Precedent says that’s wrong. For over a century the Supreme Court has deferred to state courts as the arbiter of state laws and constitutions. But take no solace in previous decisions. This court has shown us that it will willingly blow-up precedent.

Besides, the precedent is not ironclad. In 2000, in Bush v. Gore, the Florida presidential recount case, Chief William Justice Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas, asserted in a concurring opinion that when the Florida state court recount schedule conflicted with the deadline set by the state legislature, the legislative date was the only one that mattered.

Then in 2020, Justices Samuel Alito, Thomas and Neil Gorsuch indicated that a Pennsylvania Supreme Court decision to extend the deadline for counting mail-in ballots probably violated the constitutional power of the state legislature to determine the “time, place and manner of holding elections.”

The North Carolina case, in combination with the court’s decisions that undermine voter equality and participation and endorse suppression and gerrymandering, along with the ominous ongoing far-right takeover of election infrastructure in swing states, could sound the death knell for democracy. The accompanying unchecked power of the political oligarchy puts liberty in equally grave danger.

Bill Newman, a partner in the Northampton-based law firm of Lesser Newman Aleo & Nasser and host of a talk radio show on WHMP, writes a monthly column.

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