We often hear that the United States has a “republican form of government.” This comes directly from Article IV, Section 4, of the US Constitution, which emphatically proclaims, “The United States shall guarantee to all the states of this Union a republican form of government.”
The ultra-conservative majority of the US Supreme Court seems willing to make a slight variation on that language. That is, to impose on republican government in the country by allowing state legislatures to set election rules on their own, without any pesky interference from their governors or state courts.
The Supreme Court will hear arguments later this year in Moore v. Harper, a case that raises the question of whether a state legislature, acting entirely on its own, can make rules governing federal elections in the state, even rules that are contrary to state law. The facts are that North Carolina’s GOP-controlled legislature passed a new redistricting plan that was struck down by the state Supreme Court earlier this year as “blatant and intentional partisan gerrymandering.” . The plan violated the state constitution, so it should have been the end.
But the controversy, which revolves around a few innocuous words in the US Constitution, has been brewing in right-wing legal circles since three Supreme Court members brought it to life in the Bush v. Gore decision ‘year 2000. The words of Article I, Section 4, say: “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof… ” The North Carolina Legislature is asking the Court to rule that those words give it the final say on redistricting. and presumably all other rules for federal elections held in the state. His idea is called the “independent state legislature theory” (ISLT).
If the Supreme Court agrees with the GOP-controlled legislature, it will be a boon for the Republican Party in two critical ways. First, it will allow GOP legislatures to self-perpetuate and pass voting rules that disadvantage all other parties. Governors, who are necessarily more politically moderate than gerrymandered legislatures because they must appeal to statewide constituencies, and state supreme court justices, who are appointed by those governors or face in their own statewide elections, they would have no ability to counter these actions.
Second, Article ll, Section 1, of the Constitution uses similar wording for the appointment of electors to the electoral college, namely, “Each State shall appoint [Electors], in the way that the legislature can order”. A Court ruling in favor of the legislature would lend legitimacy to the kind of efforts made by Republican extremists in the 2020 election to field alternative lists of presidential electors. What a gift for Justice Clarence Thomas’ wife, Ginni, who worked so hard to get lawmakers in at least two states, Arizona and Wisconsin, to submit alternative voter lists to the Electoral College in favor of President Trump . Judge Thomas has a glaring conflict of interest in this case and should recuse himself, even at the risk of marital discord in his own home.
While a ruling for the legislature would be a major coup for the GOP, it would be a hammer blow to the rule of law in America. The idea that a state legislature, acting on its own, could establish substantive rules important to the conduct of federal elections is a gross affront to the very fabric of our constitutional system of checks and balances.
The authors of the Constitution were driven by the idea that governmental power should be divided among the three branches of government—executive, legislative, and judicial—so that each branch could act as a check on the power of the others. Legislature passes legislation, which only becomes law with executive approval, and state courts have the power to rule on it. It’s as simple as that. The framers of our Constitution would be stunned to think that our high court could even be considering such a rogue scheme as the legislature is aiding.
As many constitutional scholars have pointed out, there is no credible legal or historical basis to support the ISLT. The Conference of Chief Justices, made up of the highest judicial officers of the courts of last resort of the states and territories of the United States, has issued a brief dismissal of the theory and pointed out the grave danger it poses to our federalist system. I have been a member of this group and can attest that I would only take this step if I considered the threat to state courts to be extreme. The prospect that the Supreme Court could preemptively strip state high courts of the power to rule on rogue actions by state legislatures is an absurd violation of the 10th Amendment to the US Constitution. The only support for the theory comes from a fraudulent document relied on by the lawmaker in his Supreme Court legal brief.
Court justices appointed by Republicans have already done their party a disservice by systematically emasculating the voting rights of people of the other party. Adopting the ISLT is a bridge too far, given its lack of legal, historical or credible common sense support.
The Supreme Court should drop this case because of the serious danger it poses to our democratic system. If we want to have a fully Republican government, let it pass for a fair contest at the polls of the nation.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General (1983-1991) and 12 years as an Idaho Supreme Court Justice (2005-2017), including a term as chief justice