Even before Congress concludes its work getting to the bottom of the last major attempt to subvert democracy, it must act quickly to thwart the next one — which could come with the assistance of the US Supreme Court.
Without congressional action, next term the court could clear the way for state lawmakers not only to put into place gerrymandered congressional maps as part of a political power grab, but also to send their own electors to Washington in an effort to subvert the will of the voters in presidential elections.
This is not a hyperbolic hypothetical: allies of former President Trump have already asserted this legal theory, called the independent state legislature doctrine, in efforts to halt the counting of some absentee ballots in Pennsylvania in the 2020 election. In that case, despite the fact that Justice Samuel Alito issued an order siding with the Trump allies and temporarily halting the count, the effort failed because President Biden secured enough votes even without the contested ballots to win that state. But in a closer election, such an extreme interpretation of that legal doctrine could have changed the outcome.
This is why it was so alarming that the Supreme Court, before recessing for summer, agreed to take up a challenge brought by North Carolina GOP lawmakers seeking to use the same obscure legal doctrine after a state court struck down their proposed congressional district maps as a gerrymander that violated the state’s constitution.
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The fact that at least four justices were willing to even put the case on the court’s docket next term is troubling. It is not in itself proof that the court will adopt what has up to now been largely a fringe legal theory, particularly one that could upend the way elections are administered. But the justices rarely take up such challenges just to keep the status quo.
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Legal experts say that if the court’s conservative majority wants to adhere to originalism, it should recognize that the founders intended to give power not just to state legislatures but also state courts.
“I would like to think that the originalists on the court would look at the historical research and be willing to rethink their position” if they took up the case in order to back the challengers’ view, said Carolyn Shapiro, founder and co-director of Chicago-Kent’s Institute on the Supreme Court of the United States.
Shapiro and a host of other legal scholars have weighed in in briefs to the high court and in legal journals in an effort to note that both history and the Supreme Court’s own precedent goes against such a broad reading of the Constitution’s Elections Clause, which vests the power to regulate “times, places and manner” of federal elections with “the Legislature” of each state. In fact, in a ruling just 3 years ago, the court ruled that it does not have jurisdiction to consider claims of partisan gerrymandering, reasoning in part that that was the purview of state courts.
That buttresses the logical and well-established reading of the Elections Clause: that it requires elections to be run through each state’s regular legislative process, which includes state executive branches and agencies which execute election laws as well as state courts which interpret state laws and constitutions.
But the current Supreme Court majority has showed a willingness to turn well-established precedent on its head — from overturning Roe v. Wade to ignoring the Establishment Clause, so relying on the justices alone is perilous.
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“Congress could pass a law tomorrow that says that in regulating the times, places, and manner of federal elections state legislatures must behave consistent with their own state constitutions, and they cannot pass laws that would violate their state constitutions,” Shapiro said.
In addition to federal legislation requiring states to follow their own constitutions, Congress can also reform the Electoral Count Act to make clear that state legislators cannot seek a second bite of the apple — as many tried in the attempt to upend the electoral count on Jan. 6, 2021.
Such legislation, of course, would require at least a limited suspension of the Senate filibuster to pass. This is something that Democrats and the Republicans who care about protecting the electoral process, including Maine Republican Sen. Susan Collins, can and must do. There is already bipartisan support for reforming the electoral count process. Lawmakers can and should expand on that.
But even if Collins and every other Republican refuses to offer support, Democrats can — and should — act alone, and do so before the fall when the court returns to session and the midterm elections loom. Time is running out.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
