This Supreme Court endangers our democratic rights
By Robert Reich
The latest Republican plot to sabotage our elections could remove American voters from the process of selecting their president.
You
heard that right. A case headed to the Supreme Court could let Republican
controlled state legislatures overrule the will of the people and pick the next
president without you.
This
all hinges on a radical idea called the “independent state legislature theory.”
It’s at the heart of a case the Supreme Court will decide called Moore v. Harper.
The
decision in this case could give state legislatures the power to disregard
the popular vote and substitute their own slate of electors pledged to whomever
they wish.
We’ve
already had a preview of what this could mean for our democracy. The
independent state legislature theory underpinned a major legal strategy in
Trump’s attempted coup.
Trump: “Just
look at one thing: The legislatures of the states did not approve all the
things that were done for those elections. Under the constitution of the United
States they have to do that.”
Trump
was wrong, of course, but the current Supreme Court could make him right.
Here’s background on the case: In February 2022, the North Carolina Supreme Court blocked the state’s Republican controlled general assembly from instituting a newly drawn congressional district map, holding that the map violated the state constitutional ban on partisan gerrymandering.
The
Republican Speaker of the North Carolina House appealed the decision to
the U.S. Supreme Court, advancing the independent state
legislature theory — a theory that’s circulated for years in
right-wing circles, which argues that the U.S. Constitution gives state
legislatures alone the power to regulate federal elections in their states.
The Constitution does
grant state legislatures the authority to prescribe “the Times, Places and
Manner of holding Elections for Senators and Representatives”
But
the U.S. Constitution does not give state legislatures total
power over our democracy. In fact, for the last century,
the Supreme Court has repeatedly rejected the independent state legislature
theory.
Yet
if we know anything about the conservative majority that now controls the
Supreme Court, it’s that they will rule on just about anything that suits the
far-right’s agenda.
The
independent state legislature theory would also make it easier for states to pull all sorts of
election trickery — like pass even more voter suppression laws,
enact even more radically gerrymandered maps, and eliminate the power of
election commissions and secretaries of state to make decisions. It’s bad
enough without the full protections of the
Voting Rights Act. The last thing we need is for voter
suppression to be made even easier for extremist state legislatures.
If
the Supreme Court adopts the independent state legislature theory, it wouldn’t
just be throwing out a century of its own precedent. It would be rejecting the
lessons that inspired the Framers to write the Constitution in the first place
– that it’s dangerous to
give state legislatures unchecked power.
But
the Republican Party and the conservative majority on the Supreme Court don’t
really give a damn what the Framers thought — no matter their rhetoric. They
care even less about what you think.
It’s
a recipe for despotism.
But
we can fight back.
First, expand
the Supreme Court
to add balance to a branch of government that has been stolen by radicalized
Republicans. This is not a far-fetched idea. The Constitution doesn’t
specify how many justices there should be — and we’ve already changed the size of the
Court seven times in American history.
Second, impose
term limits on Supreme Court justices, and have them rotate with judges on the
U.S. courts of appeals.
Third, Congress
must restore federal voting rights protections and expand access to the
ballot box.
We need national minimum standards for voting in our democracy.
But
these congressional reforms can only happen if Democrats retain control of the
House in the midterm elections and add at least two more senators willing to
reform or abolish the filibuster.
Your
vote is important, and not just in federal elections. Make sure you also vote
for state legislators who understand what’s at stake and will preserve our
democracy.
Because,
as this Supreme Court case shows, the future of our democracy is not
guaranteed.
Robert
Reich's writes at robertreich.substack.com. His latest book is "THE
SYSTEM: Who Rigged It, How To Fix It." He is Chancellor's Professor of
Public Policy at the University of California at Berkeley and Senior Fellow at
the Blum Center. He served as Secretary of Labor in the Clinton administration,
for which Time Magazine named him one of the 10 most effective cabinet
secretaries of the twentieth century. He has written 17 other books, including
the best sellers "Aftershock,""The Work of Nations,"
"Beyond Outrage," and "The Common Good." He is a founding
editor of the American Prospect magazine, founder of Inequality Media, a member
of the American Academy of Arts and Sciences, and co-creator of the award-winning
documentaries "Inequality For All," streaming on YouTube, and
"Saving Capitalism," now streaming on Netflix.