NewsUSAThe case that can mark the future of democracy in the United States divides the Supreme Court

The case that can mark the future of democracy in the United States divides the Supreme Court

The United States Supreme Court is right across from the Capitol, the seat of Congress. Judicial and legislative power face to face. This Wednesday, in the courtroom, a key case for the future of the United States elections has been analyzed. Under the technicality of the case Moore vs. Harper At stake is granting the North Carolina legislature (and, by extension, the other state legislatures) the ability to regulate the elections at will, with the risk of manipulating the will of the electorate and, ultimately, altering even the rules by which state electors are appointed for the appointment of president.

At the hearing, several conservative justices (Samuel Alito, Clarence Thomas and Neil Gorsuch) have shown apparent sympathy for giving more power to mostly Republican-controlled state legislatures to draw districts and make other decisions Democrats fear. that entail suppression of vote, without control of the judges or the state constitutions. But the other three conservative magistrates have shown an intermediate position or have not ruled on the scope of their decision.

The three progressive judges have expressed their clear hostility to that position, supported in the appeal by North Carolina. Sonia Sotomayor has accused the Republican lawyer of being “rewriting history.” And Elena Kagan and Ketanji Brown Jackson have warned of the risks to electoral integrity of removing checks and balances and empowering legislators over judges and state constitutions.

The Biden government, on the one hand, and the Republican National Committee, on the other, have participated in the case with opposing positions. Republicans consider it an exaggeration to say that if the Supreme Court rules in their favor it is “the end of democracy.” What there is no doubt about is the political relevance of the case, an appeal against the decision of the North Carolina Supreme Court to annul the electoral maps drawn in their favor by the Republicans, who control the state Congress, because they considered it too partisan and artificial, an extreme case of gerrymandering (the design of the districts to benefit a party).

North Carolina House Speaker Timothy Moore appealed, citing the “independent state legislature doctrine,” which holds that only state legislatures and Congress in Washington have the power to decide federal election rules: presidential and legislative.

Article 1 of the United States Constitution states: “The places, times, and manner of holding elections for senators and representatives shall be prescribed in each State by the respective legislature, but Congress may formulate or alter the rules of reference at any time.” by means of a law (…)”.

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The question is whether when the Constitution speaks of state “legislatures” it gives carte blanche to the legislature to bypass even state constitutions and control of the courts. If the tradition established throughout American constitutional history is broken, and it is considered so, the implications could be tremendous, because it would open the way to all kinds of more aggressive maneuvers to favor one’s party by state legislatures. But it is also possible that the Supreme Court decides that in this specific case the state court overstepped its bounds, without thereby conceding that the power of legislatures when deciding electoral rules is unlimited. Part of the conservative magistrates seemed to opt this Wednesday for seeking that balance point and not adopting the most radical version of the theory of the independent state legislature. There is always also control by the federal courts.

The most combative against the aforementioned theory has been the progressive magistrate Elena Kagan: “It is a theory with great consequences. It would state that if a legislature embarks on the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think it is a violation of the Constitution. I would say that legislatures could enact all kinds of voting restrictions, get rid of all kinds of voter protections that the state constitution actually prohibits. It would allow the legislative assemblies to intervene, give themselves a role, in the certification of the elections and in the way in which the electoral results are calculated ”, he has warned.

partisan districts

The North Carolina state legislature established highly partisan constituencies for the federal Congress and for the state chambers. Following an appeal by voting rights activist Rebecca Harper, the state Supreme Court ruled that the new maps were “unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause and the free assembly clause of the North Carolina Constitution.”

Given the legislature’s allegation that the state constitution does not say anything about the gerrymandering and that the court did not have the capacity to review their decision, much less to establish the provisional maps themselves, the state judges answered that this argument went against a century of precedents of the Supreme Court of the United States and that it “repudiates the sovereign of States, to the authority of State constitutions and to the independence of State courts”.

In a brief to the court, the Biden Administration maintains that “state legislation regulating federal elections is subject to judicial review by state courts for compliance with the state constitution.” Regarding the power of legislatures to regulate elections, he adds: “No one disputes that. The question is how the legislature fulfills that function. And text, history, and precedent provide the answer: according to the checks and balances prescribed by state constitutions.”

The Republican National Committee has participated in the case and considers that the impact of the decision made by the Supreme Court is being exaggerated. Defenders of the appeal believe that it is the state courts that are overreaching and replacing legislatures with arbitrary decisions appealing to the clauses of the right to vote, freedom of expression and equality.

David Rivkin, a former senior Republican Justice Department official involved in the case, cites Pennsylvania as an example in his brief, where its Supreme Court changed the rules for voting by mail so that the deadline for arrival of ballots was not Tuesday of the elections, as the legislature had decided, but on Friday. And he wonders why a Friday is more “free and equal” than a Tuesday. Judge Alito has implicitly agreed with that theory at this Wednesday’s hearing: “Much has been said about the impact of this decision on democracy. Do you think it promotes democracy to transfer the political controversy over the distribution of districts from the legislature to the elected supreme courts?”, asked the lawyer defending the decision of the court of North Carolina.

checks and balances

Not all Republicans agree. Arnold Schwarzenegger, who was the Republican governor of California from 2003 to 2011, recalled in a brief before the court that during his tenure he promoted that the districts be set by an independent commission, so that the state legislature did not draw them to favor the Democrats . He fears that if North Carolina’s position prevails in court, that legacy will be lost. And he recalls in his writing that when he applied for US citizenship one of the first things he was taught is that his political system is one of checks and balances of power. (checks and balances), something that is at risk.

Although nobody has gone so far in the hearing on Wednesday, some constitutionalists have warned of the risk of compromising the presidential elections if the theory of the independent state legislature is endorsed. In presidential elections, the popular vote is transformed into electors or electoral votes for the party that wins in each state and they are the ones who choose the president. But the literalness of article 2 of the Constitution says that, in the presidential elections, “each State will appoint, in the way that its legislature decides, a number of electors equal to the total number of senators and representatives to which the State is entitled in Congress” . That “as your legislature will” may be a hole through which the theory of the independent state legislature in its most extreme version slips. Following Donald Trump’s attempt to subvert the election result of the 2020 presidential election, which was won by Joe Biden, there are those who see it as a serious threat and those who believe it to be nonsensical exaggeration.

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