[Spread the word, because the midterms elections have become even
more crucial ]
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THE MOST DANGEROUS UPCOMING SUPREME COURT DECISION YOU NEVER HEARD OF
 
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Robert Reich
July 25, 2022
LA Progressive
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_ Spread the word, because the midterms elections have become even
more crucial _

, Robert Reich

 

On June 30, the Supreme Court agreed to hear a case called _Moore v.
Harper. _With all the controversial decisions handed down by the
Court this term, its decision to take up this case slid under most
radar detectors. But it could be the most dangerous case on the
Court’s upcoming docket. You need to know about it.

Here’s the background: Last February, the North Carolina Supreme
Court blocked
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state’s Republican controlled general assembly from instituting a
newly drawn congressional district map, holding that
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map violated the state constitutional ban on partisan gerrymandering.
The Republican Speaker of the North Carolina House
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the decision to the U.S. Supreme Court
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advancing what’s called the “independent state legislature
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theory. It’s a theory that’s been circulating for years in
right-wing circles. It holds that the U.S. Constitution gives state
legislatures _alone_ the power to regulate federal elections in
their states.

We’ve already had a preview of what this theory could mean. It
underpins a major legal strategy in Trump’s attempted coup: the
argument that state legislatures can substitute their _own_ judgment
of who should be president in place of the person chosen by a majority
of voters. This was the core of the so-called “Eastman memo” that
Trump relied on (and continues to rely on) in seeking to decertify
Biden’s election.

The U.S. Constitution _does_ grant state legislatures the authority
to prescribe “the Times, Places and Manner of holding Elections.”
But it does _not _give state legislatures total power over our
democracy. In fact, for the last century
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the Supreme Court has repeatedly rejected the independent state
legislature theory.

Yet if we know anything about the conservative majority now
controlling the Supreme Court, it’s that they will rule on just
about anything that suits the far-right’s agenda.

Conservatives on the Court have already paved the way for this bonkers
idea. Then-Chief Justice William Rehnquist was an early proponent. In
his concurring opinion in _Bush v. Gore
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the recount in Florida in the presidential election, Rehnquist (in an
opinion joined by Justices Antonin Scalia and Clarence Thomas)
asserted that because the state court’s recount conflicted with
deadlines set by the state legislature for the election, the court’s
recount could not stand.

The issue returned to the Supreme Court in 2020, when the
justices turned down a request by Pennsylvania Republicans
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fast-track their challenge to a Pennsylvania Supreme Court ruling that
required state election officials to count mail-in ballots received
within three days of Election Day. In an opinion that accompanied the
court’s order, Justice Alito (joined by Justices Clarence Thomas and
Neil Gorsuch) suggested that the state supreme court’s decision to
extend the deadline for counting ballots likely violated the U.S.
Constitution because it intruded on the state legislature’s decision
making.

Make no mistake. The independent state legislature theory would make
it easier for state legislatures to pull all sorts of additional
election 
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without any oversight from state courts: ever more voter suppression
laws, gerrymandered maps, and laws eliminating the power of election
commissions and secretaries of state to protect elections.

If the Supreme Court adopts the independent state legislature theory,
it wouldn't just be throwing out a century of its own precedent. It
would be rejecting the lessons that inspired the Framers to write the
Constitution in the first place: that it’s dangerous to give state
legislatures unchecked power
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as they had under the Articles of Confederation.

The Republican Party and the conservative majority on the Supreme
Court call themselves “originalists” who find the meaning of the
Constitution in the intent of the Farmers. But they really don’t
give a damn what the Framers thought. They care only about imposing
their own retrograde and anti-democracy ideology on the United States.

But we can fight back.

First, Congress must expand the Supreme Court 
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add balance to a branch of government that has been stolen by
radicalized Republicans. This is not a far-fetched idea. The
Constitution doesn’t specify how many justices there should be –
and we’ve already changed the size of the Court seven times
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American history.

Second, Congress must impose term limits
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Supreme Court justices, and have them rotate 
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judges on the U.S. courts of appeals.

Third, Congress must restore federal voting rights protections and
expand access to the ballot box. We need national minimum standards
for voting in our democracy.

Obviously, these reforms can happen _only_ if Democrats retain
control of the House in the midterm elections and add at least two
more Democratic senators — willing to reform or abolish the
filibuster.

So your vote is critical, and not just in federal elections. Make sure
you also vote for state legislators who understand what’s at stake
to preserve our democracy. Because, as this Supreme Court shows, the
future of our democracy is not guaranteed.

_Professor, writer, former Secretary of Labor, author of The System,
The Common Good, Saving Capitalism, Aftershock, Supercapitalism, The
Work of Nations. Co-creator of "Inequality for All" and "Saving
Capitalism." Co-founder of Inequality Media_

* Supreme Court
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* undemocratic
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* states' rights
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* North Carolina
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* voter disenfranchisement
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