It took them 50 years to get the U.S. Supreme Court to overturn Roe. It might take them only two years to get the court to take your vote from you.
In addition to all the efforts to make voting difficult and to suppress voter turnout among specific groups of citizens, determined elements in the political and legal communities of our civil society are pushing an interpretation of the U.S. Constitution which gives state legislatures an unfettered jurisdiction over federal elections. This position is called the independent state legislature doctrine (ISL).
According to this interpretation of Article I, Section 4, Clause 1 and Article II, Section 1, Clause 2 of the U.S. Constitution, state legislatures—without oversight by the courts or the executive branch—have the power to determine congressional districts and to select the electors of the president of the United States.
Generally considered an extremist interpretive theory in constitutional law, ISL came to robust life in a concurring opinion written by then-Chief Justice William Rehnquist in the Bush v. Gore case regarding the 2000 presidential election.
George W. Bush lost the national popular vote and ended up in a statistical tie with Al Gore for Florida's 25 electoral votes. The U.S. Supreme Court settled the Florida recount dispute by letting stand the vote certification for Bush made by Florida Secretary of State Katherine Harris. With Florida's 25 electoral votes, Bush had 271 electoral votes to Gore's 266.
In this decision, Justices Scalia and Clarence Thomas looked favorably on Rehnquist's argument that the Constitution gives the state legislature the power to determine the vote of the state's electors.
In 2021, the North Carolina General Assembly adopted a new congressional voting map based on the 2020 Census which was so obviously gerrymandered to favor Republican candidates that the North Carolina state Supreme Court ruled the map could not be used in the 2022 congressional elections.
The Republican legislators petitioned the U.S. Supreme Court to halt the state court order. The petition was denied with four dissenting votes: Justices Samuel Alito, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh.
Kavanaugh explicitly cited the ISL doctrine as an important issue to be addressed in adjudicating the case.
In early 2022, using the ISL doctrine as his main argument contesting the jurisdiction of the state court over the state legislature, Timothy K. Moore (R), speaker of the North Carolina House of Representatives, filed an emergency petition for the U.S. Supreme Court (Moore v. Harper) to review and reverse the state court decision.
This time, the court granted review on June 30, 2022. Moore v. Harper is scheduled to be argued before the court in the 2022-2023 session.
Should the ISL doctrine gain Supreme Court endorsement, in effect, state legislatures would have the legal power to allocate the votes of the state's electors in any way they choose, regardless of the popular vote tallies. The state popular vote for a presidential candidate could go overwhelming in favor of candidate X but the state legislature could, in principle, cast the state elector votes for candidate Zero.
The "originalist, activist" justices on our current U.S. Supreme Court have not hesitated to advance "right to carry" gun rights into every aspect of our society; they have not hesitated to blur the boundaries between church and state; they have not hesitated to trespass into the private, sacred spaces of our bodies; all in the name of interpreting the texts of our Constitution according to the historical contexts in which they were formed.
Let's look at the historical context: At the Constitutional Convention in Philadelphia, James Wilson, of Pennsylvania, and James Madison, of Virginia, wanted the president to be elected directly by popular vote. Slave states and others objected because they feared political domination by more populous, more powerful New York, Massachusetts and Connecticut, and Pennsylvania. There might have been some good reasons for establishing this cumbersome presidential electors mechanism—one being that, otherwise, there would not have been a United States of America at all.
Today, however, the very nature of our society has changed profoundly. We no longer have slaves. Women can vote. Men of all colors can vote. You do not have to be a property owner to vote. Our citizens are highly mobile, born in one state, raised in another, educated in another. Many of us—our intense commitment to local community and neighborhood notwithstanding—live and work in two or three states at one time.
The 2022 platform of the Republican Party of Texas calls for the repeal of the Voting Rights Act of 1965—an act for which we waited 100 years to make real the rights of all citizens to exercise their right to vote without literacy tests, property tests, onerous residency tests, and other forms of intimidation and violent repression.
IF WE ARE TO PRE-EMPT these efforts to destroy our democratic republic, it is time for us to elect the president of the United States by direct popular election. The National Popular Vote Interstate Compact (NPVIC) initiative proposes an interesting way to achieve this goal, an agreement among the states to apportion electoral votes according to the popular vote.
The NPVIC does not require a constitutional amendment and, ironically, relies on the very same Articles cited by ISL. As of February 2022, NPVIC has been adopted by fifteen states and the District of Columbia. However, since Trump's failed re-election, legislation has been introduced in several of these states to have their commitments repealed. So far they have not succeeded.
Republicans currently control 30 of the country's state legislatures.
Chief Justice John Roberts has lost control of the Supreme Court.
Alito, Gorsuch, Thomas and Kavanaugh are primed and ready.
Justice Amy Coney Barrett has the fifth and deciding vote.
July 2022 © nicholas.patricca@gmail.com
Nick Patricca is professor emeritus at Loyola University Chicago; President of Chicago Network JP; Officer, San Miguel PEN Centre; Member, TOSOS Theatre Ensemble, NYC.
