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**JULY 21, 2021**

Kuttner on TAP

A Republican Form of Government

****

One of the sleeper clauses in the U.S. Constitution is Article IV,
Section 4, known as the Guarantee Clause. It provides that "The United
States shall guarantee to every state in this union a republican form of
government."

Note that this is republican with a lowercase r, as in government by and
for the people, and not Republican as in the Republican Party. But
lately, several states controlled by Republicans seem to be turning the
Guarantee Clause on its head.

Question: If a combination of extreme voter suppression and gimmicks
that allow the incumbent ruling party to overturn elections leads to the
permanent entrenchment of one party, at what point does this violate the
Guarantee Clause? Can a one-party state based on rigged elections, by
any stretch, be considered a "republican form of government"?

For the most part, the courts have taken a very restrictive view of when
a challenge under the Guarantee Clause might be taken seriously. But the
latest voter suppression tactics call that assumption into question. In
Georgia, as Ian Millhiser recently pointed out
,
one provision of the newly enacted suppression law effectively empowers
Republicans to selectively close polling precincts in areas such as
Fulton County likely to vote for Democrats.

Measures like these create one-party states-permanent Republican forms
of government. At what point might such tactics offend even John
Roberts, whose rulings on voter suppression have been uniformly
disingenuous?

Our friend and occasional

**Prospect** author Erwin Chemerinsky, dean of the UC Berkeley law
school, has long urged courts to entertain a more expansive
interpretation

of the Guarantee Clause.

It's not as if the clause has gone entirely unnoticed. In his epic
dissent in the 1896 case of

**Plessy v. Ferguson**, upholding Louisiana's "separate but equal"
facilities for Blacks (which were in fact far from equal but emblems of
white supremacy), Justice John Marshall Harlan invoked the Guarantee
Clause:

I am of opinion that the state of Louisiana is inconsistent with the
personal liberty of citizens, white and black, in that state, and
hostile to both the spirit and letter of the constitution of the United
States ... Such a system is inconsistent with the guarantee given by the
constitution to each state of a republican form of government.

Over to you, Justice Roberts.

~ ROBERT KUTTNER

Follow Robert Kuttner on Twitter

Robert Kuttner's latest book is
The Stakes: 2020 and the Survival of American Democracy
.

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