Republicans ask Supreme Court for help in electoral coup

As the lights go out on the 2021/2022 judicial year, the U.S. Supreme Court has decided to adjudicate, in the next judicial year beginning October 3, a lawsuit brought by lawmakers from the North Carolina Republican Party that has the potential to give state legislatures the power to subvert the results of the 2024 election, which includes the presidential election, even if doing so goes against electoral laws and the state constitution — and without the courts being able to intervene.

In this lawsuit, Republicans ask the Supreme Court to validate an obscure theory called the “Independent State Legislature” doctrine. The doctrine was invented — and then forgotten — in 2020, in Bush v. Gore (in which the Supreme Court handed over the Presidency to the Republican George W. Bush) by the then President of the Court William Rehnquist, with the support of Justices Antonin Scalia (deceased) and Clarence Thomas (still on the Court).

The doctrine says that, according to the provisions of the Constitution on elections and on the choice of delegates to the electoral college, the state legislatures have full and exclusive power to conduct federal presidential elections and — what comes to the case — the selection of delegates who will choose the president in the electoral college.

Not even state superior courts, let alone state electoral authorities, can alter electoral rules written by the legislature or interfere with the appointment of electoral delegates chosen by state legislators.

The doctrine is based on an interpretation of Article II of the Constitution. That article says that states must appoint voters (electoral college delegates) “in such a manner as the legislature ordains”. Currently, states nominate delegates chosen by the party that won the presidential election in their territory.

In short, the legislature of a state with a Republican (or Democratic) majority in the House and Senate may fail to certify the outcome of the presidential election (which is done today by an electoral commission and the secretary of state), with the claim that there was fraud or other problems, discard the group of delegates chosen by the winning party and nominate their own group of delegates to vote in the electoral college.

It may seem like such a threat to the democratic process that the Supreme Court would never validate such an “Independent State Legislature” doctrine. But first, the Supreme Court decided to dismiss the lawsuit, rather than kill the “threat” in the bud.

Second, the Court has previously dismissed the case (in Moore v. Harper), but four Conservative justices (Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh) have declared that the issue of the independent state legislature is of exceptional importance to national elections. and that the court must decide the matter in time for the next presidential election.

The three liberal ministers (Sonia Sotomayor, Elena Kagan and Katanji Brown Jackson) and the Chief Justice, Justice John Roberts, who is conservative, are expected to vote against the doctrine. In that case, the matter will be decided by Minister Amy Coney Barrett, whose opinion is not yet known. The minister, who is a conservative and declares herself an “originalist” like some of her colleagues on the conservative wing, will be able to vote in favor.

In that case, it will happen what former federal appeals judge J. Michael Luttig, considered a “giant in conservative legal circles”, predicted a short time ago in an article signed for CNN. In that article, the jurist warned voters in the country that “the republicans will try to steal the next elections”.

For Luttig, who is a Republican, former President Donald Trump and his supporters across the country have been insisting that the 2020 election was rigged in some states in favor of Joe Biden, not because he truly believes it, but to try to change it. the rules of the game for the 2024 election. After being defeated in the elections, Trump tried to convince some secretaries of state to reject Democratic delegates and nominate Republican delegates, without success.

But, passing the baton to the legislative assemblies, the chances of subverting electoral results are much greater. And significant: 30 of the country’s 50 states have a Republican majority in the House and Senate of their respective legislative assemblies.

The action by North Carolina Republican lawmakers who reached the Supreme Court is not directly linked to the process of choosing delegates to the electoral college. It is about the power of state legislative assemblies to draw district maps for electing deputies.

The North Carolina Legislative Assembly redrawn the district map for its elections, but the new map was rejected by the state’s superior court. The court ruled that the map is overly partisan and therefore violates the state Constitution, not least because it fails to reflect North Carolina’s overall partisan political makeup.

In drawing the map for district elections, the parties with the majority in the legislative assemblies resort to a manipulative electoral tactic, known in the US as “gerrymandering”, in “homage” to the former governor of Massachusetts, Elbridge Gerry, who invented it and used it for the first time.

The manipulation consists of diluting the number of votes of the opposing party in an area, subdividing it into two or three small areas and joining each smaller area to a larger area, where more voters of the party that draws the map are concentrated. Thus, that party will have more votes guaranteed in these two or three new districts. Another way to do this is to merge two opposing party areas into a single district.

Although the target of the action is the right of the Legislative Assemblies to design their district maps as they wish — and thus guarantee perpetuity in electoral positions — the support of the request to the Supreme Court is the doctrine of the “Independent State Legislature”.

Thus, the Court can help Republicans kill two birds with one stone — that is, the design of district maps and the choice of electoral college delegates — and seriously harm the supposed democratic process that governs elections in the US, in that the vote of the majority of voters means nothing, because who elects the president is the electoral college, which can also be manipulated. With information from National Public Radio (NPR), MSNBC, the Washington Post, the Salon website, Vox and the Brennan Center for Justice.

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