A crisis of democracy has been averted — at least according to the digital hot takes and media headlines immediately following this week’s US Supreme Court arguments in a case that could dangerously alter the way federal elections are run and regulated. Lovers of democracy, they say, can exhale because a fringe legal theory that would tie the hands of state courts and give partisan state lawmakers near unfettered authority to set rules for federal elections did not seem to win a definable majority of the court’s justices. Among those not clearly swayed are three members of the court’s conservative bloc: Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.
Forgive me if my breath remains bated.
Though North Carolina Republicans didn’t exactly make a slam dunk with their claim that the so-called independent state legislature theory protects their gerrymandered districts, there is still plenty about this case and this week’s arguments that is cause for concern. Democracy isn’t safe yet — and we won’t know the extent of the peril it faces until we get a decision from the court, which may not come until summer.
If the stakes in the case, Moore v. Harper, weren’t already crystal clear, Justice Elena Kagan made crystal clear what the independent state legislature doctrine would do.
“This is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country … at exactly the time when they are needed most,” Kagan said, hinting at, if not stating outright, the elephant in the courtroom: recent and ongoing election fraud lies by former president Donald Trump and his allies, and resulting efforts to deny and overturn election results.
Partisan lawmakers, seeking to protect their own power, Kagan said, “have incentives to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage the political process.”
The fact that the court took up this challenge to begin with, however, is already an ominous sign. It means that the court is at least willing to, once again, upend its own precedent — in this instance, a decision that is not even four years old.
In that ruling, the court held that federal courts have no jurisdiction to consider claims of partisan gerrymandering because that was a political matter that should be left to political bodies. But, Roberts noted in that opinion, just because federal courts can’t step in doesn’t mean there is no check on such partisan power grabs. If such gerrymandering violates, for example, state law or state constitution rules, state courts can step in.
“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote.
So why are we even here? Why is the court considering an argument that the US Constitution bars state courts from doing exactly what the Supreme Court has already said they can do? Stare decisis, anyone? Or are the court’s own words no longer worth the paper they’re written on? I guess we learned, with Roe v. Wade, they’re not.
And speaking of precedent, another case loomed large over Wednesday’s arguments: Bush v. Gore.
But here’s the problem: That case isn’t precedent. At all. Not only was the ruling which ultimately handed a legal and political victory to former president George W. Bush expressly limited to that case and that case only, but the language from that case that has been used to breathe new life into this fringe election theory wasn’t even from the majority opinion of that case.
It comes from a concurrence by then-Chief Justice William Rehnquist that earned only two other votes.
Rehnquist stated that the Elections Clause of the US Constitution gives “exclusive” power over federal elections — including how electors for president and vice president are appointed — to state lawmakers. And there would be nothing state courts could do about it.
It’s ironic that one of the comments during arguments this week that gave pundits such confidence that the independent legislature theory was a flop came from Kavanaugh, who suggested that the arguments made by North Carolina Republicans “go further than Chief Justice Rehnquist’s decision in Bush v. Gore.”
I found Kavanaugh’s words anything but comforting. For starters, he treats Rehnquist’s words like they are binding — an indication that the decision in this case could codify them for good. Also, it’s worth noting that three current justices worked on behalf of Bush’s legal team in that 2000 challenge. Which three? You guessed it: Kavanaugh, Barrett, and Roberts. Kavanaugh even gave full-throated support for the independent legislature theory in media interviews.
These are the very three justices we would have to trust to believe that a crisis of democracy has been averted at the high court. I, for one, am holding off on the celebration.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at firstname.lastname@example.org. Follow her on Twitter @KimberlyEAtkins.