Congress Has Ability to Resist Conservative Court’s Impending Electoral Threat

Congress Has Ability to Resist Conservative Court’s: In 1900, Republican President William McKinley was re-elected over anti-imperialist Democrat William Jennings Bryan thanks to his effective prosecution of the Spanish American War.

After McKinley’s election, the Supreme Court issued a series of decisions known as the “Insular Cases” that solidified American sovereignty over Spanish-held islands like Puerto Rico.

Journalist Finley Peter Dunne of Chicago famously wrote, “The Supreme Court follows the election returns,” with the Insular Cases in mind. Today’s reality is reflected in that cynical remark: Reactionary members of the court’s majority don’t hide their political affiliations.

We will get our first look at whether the court wants to do more than merely “follow” election returns on December 7 when Moore v. Harper is contested. The fundamental principle of our democracy, that leaders are elected by a majority of the population, is at serious jeopardy because of the Moore case.

If the radical court majority uses Moore to declare the thoroughly refuted “independent state legislature theory” the law of the land, this principle will be in risk. The central fallacy of the independent state legislature thesis is that the Election Clause of the Constitution vests in state legislatures the exclusive power to establish the procedures and requirements for federal elections, barring any action to the contrary by Congress.

Independent state legislative hypothesis that the Republican petitioners promote in Moore was “the legal cornerstone of former President Donald Trump’s efforts to reverse the 2020 election,” as conservative icon and former federal appellate court judge Michael Luttig has noted.

While Moore focuses on gerrymandering, it’s easy to see how election doubters could use a majority Supreme Court ruling in favour of the principle of autonomous state legislatures to expand their efforts to include the presidential election.

The first step is to make state legislatures responsible for redistricting exclusively. Second, denialists will argue that this holding allows legislators to pick presidential electoral college slates… despite the popular vote.

I wouldn’t jump to that conclusion just yet. The outgoing Senate has a once-in-a-generation chance to save our democracy by passing Senator Susan Collins (R-Maine) electoral reform measure (ECA). As expected, the House version has been approved.

With a combined bill, we can stop Moore v. Harper from empowering state legislatures over popular will as soon as the 2024 presidential election.

Congress Has Ability to Resist Conservative Court's
Congress Has Ability to Resist Conservative Court’s

The ECA Reform proposals clarify the current law by establishing that the winning election slate must be certified by the governor of the state, and no one else. The 1887 ECA is less specific, simply stating that the “administration” of each state had the power.

Legislators could designate anybody they wanted as the state’s “executive” for purposes of certifying presidential elections, leaving a loophole that an election-denying legislature could utilise to sidestep a governor faithful to the majority’s vote.

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Farfetched? Attempting to nullify the results of the 2020 election, Trump nearly rammed an armoured limousine through ECA loopholes in the days leading up to January 6. Even after failing, he has not given up.

An election-denialist state legislature might use the law to ensure a Republican president is elected despite the will of the voters, who cast their ballots for the Democratic candidate, if the ECA is not amended to prevent such a scenario.

What wonderful news! Voters in swing states stopped that route in the midterm elections, at least until ECA reform is completed in 2024. There are only three swing states that will soon have Republican-controlled legislatures, and all three of them re-elected non-election-denying governors: Brian Kemp (R-Ga), Katie Hobbs (D-Ariz.), and Tony Evers (D-Wis).

(D-Wis.). Meanwhile, voters in two swing states elected Democrats Gretchen Whitmer and Josh Shapiro to serve as governor of their respective states until 2027. Joe Lombardo, a Republican and also an election fraud denier, was elected governor of Nevada.

The ECA reform legislation include numerous improvements, one of which is a more clear definition of the function of governors in the certification of elections. They make it clear that the vice president’s involvement in overseeing Congress’ certification of an election is purely symbolic.

With Trump unsuccessfully pressuring Pence to “delay” the electoral count in 2020, the House legislation wisely adds that the vice president cannot “delay” the tally. The delay prohibition should be included in the final measure.

It is recommended that a “majority rule” clause be included to prevent any more mischief in the future. For example, it could read: “The state’s federal election procedures must ensure that the majority-approved list of presidential electors is certified.” There is room for more enhancements.

That said, let’s not make the “perfect” the enemy of the “good.” Once reasonable amendments have been fought for and won, Congress must pass the most beneficial legislation possible. With 15 Republican co-sponsors, including Senate Minority Leader Mitch McConnell (R-Ky.), the bill has more than enough support to pass the Senate with no risk of a filibuster.

Without ECA reform, majority rule is at the whim of Supreme Court justices who have demonstrated little heart for democracy and whose overreach in Dobbs has already angered critical swing voters.

Without updating Finley Peter Dunne’s 1901 jab at the justices, “The court doesn’t only follow election results, it drives them,” the Moore majority’s adoption of the autonomous state legislature theory could have far-reaching consequences. Supreme Court advocates like Dennis Aftergut, a former federal prosecutor, are rare.

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