[It is not too much to say that the Republican Party has cleared
itself a path to nullifying the votes of millions of Americans.]
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MADISON SAW SOMETHING IN THE CONSTITUTION WE SHOULD OPEN OUR EYES TO
 
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Jamelle Bouie
November 12, 2021
New York Times
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_ It is not too much to say that the Republican Party has cleared
itself a path to nullifying the votes of millions of Americans. _

,

 

Not content to simply count on the traditional midterm swing against
the president’s party, Republicans are set to gerrymander their way
to a House majority next year.

Last week, North Carolina’s Republican-controlled statehouse passed
a new map
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would, in an evenly divided electorate, give it 10 of the state’s 14
congressional seats. To overcome the gerrymander and win a bare
majority of seats, according to the Princeton Gerrymandering Project
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Democrats would have to win an unattainably large supermajority of
votes.

A proposed
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gerrymander in Ohio would leave Democrats with two seats out of 15 —
or around 13 percent of the total — in a state that went 53-45
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Trump in 2020.

It is true that Democrats have pursued their own aggressive
gerrymanders in Maryland and Illinois, but it is also true that the
Democratic Party is committed, through its voting rights bills, to
ending partisan gerrymandering altogether.

The larger context of the Republican Party’s attempt to gerrymander
itself into a House majority is its successful effort to gerrymander
itself into long-term control of state legislatures across the
country. In Michigan, Wisconsin, Pennsylvania and other states,
Republicans have built legislative majorities sturdy enough to
withstand all but the most crushing “blue wave.” And in the age of
Donald Trump, they are using their majorities to seize control of
election administration
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states all over the country, on the basis of an outlandish but still
influential claim that the Constitution gives sovereign power over
elections to state legislatures.

It is not too much to say that the Republican Party has cleared itself
a path to nullifying the votes of millions of Americans. What, if
anything, is there to do about it?

Here, I think it is worth looking at one rarely discussed section of
the Constitution.

In Article IV, Section 4, the Constitution says, “The United States
shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on
Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence.”

Much of this is straightforward. The federal government is obligated
to protect each state from foreign invasion — a legitimate threat in
the early days of the United States, when the nation faced foreign
powers on its northern, southern and western borders (as well as
British naval power) — and is obligated to quell domestic uprisings,
from the rebellions that rocked the United States as it existed under
the Articles of Confederation to the slave revolts that struck terror
into the hearts of the Southern planter class.

But what, exactly, does it mean for the federal government to
“guarantee to every State in this Union a Republican Form of
Government”?

As James Madison explains it in Federalist No. 43
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“In a confederacy founded on republican principles, and composed of
republican members, the superintending government ought clearly to
possess authority to defend the system against aristocratic or
monarchial innovations.”

He goes on: “The more intimate the nature of such a Union may be,
the greater interest have the members in the political institutions of
each other; and the greater right to insist that the forms of
government under which the compact was entered into, should be
substantially maintained.”

Of course, there’s no real chance in the modern era that any state
will become a “monarchy” or “aristocracy” in the 18th-century
sense. So why does the Guarantee Clause matter, and what does it mean?
How does one determine whether a state has maintained a “republican
form of government”?

Ordinarily we would turn to the Supreme Court for an answer to a
question of this sort. But here, the court has deferred to Congress.
In_ _Luther v. Borden in 1849 —_ _a suit that concerned the
authority of a Rhode Island government that still operated under its
original royal charter and which rested on the Guarantee Clause —
Chief Justice Roger Taney (later of Dred Scott infamy) declared
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Under this article of the Constitution, it rests with Congress to
decide what government is the established one in a State. For as the
United States guarantee to each State a republican government,
Congress must necessarily decide what government is established in the
State before it can determine whether it is republican or not.

Taney’s ruling held strong, a little more than 60 years later,
in Pacific States Telephone and Telegraph Co. v. Oregon
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court rebuffed a claim that the Guarantee Clause rendered direct
referendums unconstitutional by stating that it was beyond the scope
of the power of the Supreme Court to enforce the guarantee of a
republican government. “That question,” wrote Chief Justice Edward
White in his majority opinion, “has long since been determined by
this court conformably to the practice of the government from the
beginning to be political in character, and therefore not cognizable
by the judicial power, but solely committed by the Constitution to the
judgment of Congress.”

This remains the court’s view. But it’s not the only view. In his
famous dissent
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Ferguson in 1896, Justice John Marshall Harlan cited the Guarantee
Clause in his brief against Louisiana’s Jim Crow segregation law. If
allowed to stand, he wrote,

there would remain a power in the States, by sinister legislation, to
interfere with the blessings of freedom; to regulate civil rights
common to all citizens, upon the basis of race; and to place in a
condition of legal inferiority a large body of American citizens, now
constituting a part of the political community, called the people of
the United States, for whom and by whom, through representatives, our
government is administrated. Such a system is inconsistent with the
guarantee given by the Constitution to each State of a republican form
of government, and may be stricken down by congressional action, or by
the courts in the discharge of their solemn duty to maintain the
supreme law of the land, anything in the Constitution or laws of any
State to the contrary notwithstanding.

In this vision of the Guarantee Clause, the touchstone for “a
republican form of government” is political equality, and when a
state imposes political _inequality_ beyond a certain point,
Congress or the federal courts step in to restore the balance.

In a 2010 article
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the Stanford Law Review, Jacob M. Heller called this a “death by a
thousand cuts” approach to enforcement, one where lawmakers and
courts understand that “anything that impedes on the state’s
republican form is one step closer to eventual unraveling of a
state’s republican form of government.”

Even if wielded in this manner, the Supreme Court may determine
there’s nothing the judiciary can do to ensure a “republican form
of government.” Chief Justice John Roberts suggested as much
in Rucho v. Common Cause
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a note that the plaintiffs’ objection to an earlier legislative map
of North Carolina seems “more properly grounded in the Guarantee
Clause,” but that the court “has several times concluded” that
the clause “does not provide the basis for a justiciable claim.”

Still, a broad understanding of the Guarantee Clause might be a potent
weapon for Congress if a Democratic majority ever worked up the will
to go on the offensive against state legislatures that violated basic
principles of political equality.

The fight to fully realize American democracy will require a vision of
the Constitution that emphasizes the ways in which it facilitates
democratic practice, rather than one that sees only limits — a
vision rooted in the hopes of freedmen rather than the fears of a
moneyed elite. And it is to that end of democratic expansion that the
Guarantee Clause holds a great deal of power and potential.

_JAMELLE BOUIE became a New York Times Opinion columnist in 2019.
Before that he was the chief political correspondent for Slate
magazine. He is based in Charlottesville, Va., and
Washington. @jbouie [[link removed]]_

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