This essay was originally published in July. The US Supreme Court will hear the case on Wednesday, December 7th, and it’s worth looking at again. IF the Supreme Court agrees with this radical theory, it could change the outcome of elections for years to come.
Back to Class
There is a bomb set to blow up the entire election of 2024. It could make the Presidential votes of the citizens of the United States unimportant. The gerrymandered state legislatures could decide the election, without referring to the popular vote count. And it would all be “legal”. The fuse is already lit.
To understand that panicky warning, there’s a lot of explaining to do. So I need to take you back to class, to that early morning American Government (or POD) class, with a chalk board and books instead of Smart Boards and computers.
The “School House Rock” version of our government is pretty simple. There are three branches: the legislative, the executive, and the judicial. The legislative writes the laws and the executive takes those laws and enforces them. The Judiciary makes sure that those laws “fit” with other laws and the US Constitution, in a process called judicial review.
If I was your teacher, you might remember a candle in a dark classroom, as President John Adams signed the documents creating the “midnight judges”. That action started the sequence of events ending in the Supreme Court case Marbury v Madison. The Supreme Court took the ability to determine whether Congressional actions are Constitutional, judicial review.
But it doesn’t “have” to be that way.
Gerrymandering on Steroids
The process of drawing legislative districts so that one party is specifically advantaged is “Gerrymandering”. It was named after Elbridge Gerry, the Governor of Massachusetts in 1812. He signed a bill creating a district that looked like a salamander to guarantee a Democratic/Republican (that’s the Party that evolved into today’s Democrats) victory. The newspapers called it “Gerrymandering”, and it has been an American political tradition ever since.
Gerrymandering went on steroids with the development of advanced computing. It was no longer a matter of this section trends to one party or the other. Computer modeling could create absolutely specific maps to maximize advantage, down to the street level or even specific addresses. Want to dilute the other party’s power? Make sure that their supporters are divided into multiple districts. Want to strengthen your own power? Draw districts to guarantee your base is “in charge”. Need to see an example – check out the map of Ohio’s Fourth Congressional District in 2020, represented by Jim Jordan.
Ohio’s 4th Congressional District – more of a Duck than a Salamander
After the 1965 Voting Rights Act was passed by Congress, the US Supreme Court ruled that while districts could be Gerrymandered for political gain, they couldn’t be drawn to prevent racial minority candidates from winning elections. That was 1995 in Miller v Johnson. So the rule was pretty simple: when Ohio Republicans drew the Fourth District, it held up to Court scrutiny because it wasn’t “racially” based. But when it was demonstrated that North Carolina specifically divided black communities to weaken their voting power, it was unconstitutional, at least until 2019.
Saved in Court
In that year the Supreme Court majority, led by Chief Justice Roberts, stated that Federal Courts would no longer rule about Gerrymandering. He “kicked that” to State Court jurisdiction for judicial review. They would have final say over the actions of the state legislatures in drawing maps, and in making other election decisions.
After the 2020 election, both the state and federal courts confirmed the popular vote. The desperate Trump campaign went to them first. In more than sixty cases, “Stop the Steal” was debunked and dismissed. Even judges appointed by President Trump, including on the US Supreme Court, dismissed Trump’s claims against the valid election results. After Trump lost there, he went to the other tactics we heard about in the January 6th Committee hearings. One was to place Extreme pressure on election officials to change results. Another was to convince state legislatures to ignore the popular vote and replace Biden electors with Trump’s. That all lead to the Insurrection of January 6th.
The Eastman Plan
But in that final push to overturn the election, lawyer John Eastman (of the “Green Bay Sweep” fame) put forward a radical theory of the American Constitution, called the “Independent State Legislature” (ISL). It stated that the US Constitution gave state legislatures the exclusive power to determine how federal elections are conducted. He based this concept on Article I, Section 4:
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
Eastman theorized that the language was specific, and that the state courts or constitutions had no place in ruling on how the legislatures exercised that power. The argument is simple: if a state legislature, say Georgia, said that Donald Trump won, regardless of what the popular vote in the state was, then neither the Georgia state courts nor the Georgia state constitution could be used to overturn that decision.
(If you think a state legislature can’t ignore the state Supreme Court or the state Constitution – remember the DeRolph school funding decision in Ohio? The Court ruled the funding process unconstitutional- but the legislature refused to change it. That was twenty-five years ago, and the process still hasn’t changed).
School House Rock
Back to “School House Rock” for just a second. Eastman states that the Courts have no power of judicial review over elections, because the US Constitution doesn’t give them the specific power in Article I, Section 4 to review federal election decisions. So the three co-equal branches, aren’t; and the legislature is unchecked when it comes to those decisions.
The “ISL” theory flies in the face of traditional American government, and the precedent established by Marbury v Madison at the very beginnings of our Federal system. It requires a restricted view of the US Constitution, only viewing the actual text in that section without looking at the rest of the document, or the history that followed it. In any other time in our history, going all the way back to the Marshall Supreme Court in 1801, it would have been laughed out of the courtroom.
The Bomb
But we aren’t in any other time. Today’s US Supreme Court is in the hands of “textualists” who are sympathetic to the “black and white” arguments that lawyers better than Eastman are making. On Wednesday they will hear Moore v Harper, arguing that the North Carolina Courts have no place in deciding the legality of Gerrymandered districts in North Carolina. They have no place, because, according to ISL, the legislature has the exclusive power to determine election decisions.
The decision will be published sometime in 2023. It’s about Gerrymandering, but the ramifications would apply to election laws in every state. And, as we now know, the current Supreme Court majority isn’t afraid of overturning precedent, or taking radical historic stands.
What if those sixty courts didn’t have a chance to rule on “Stop the Steal”? What if those few election officials who stood up against changing the results, didn’t have court backing? The Trump/Republican Party tried to pack state legislatures and election offices with “Stop the Steal” believers in 2022. They may be the legislators “in charge” in 2024. They could decide that the election results are “wrong”, and send their own slate of electors, this time with legislative approval, to be counted in the House of Representatives.
Moore v Harper is the fuse. If the Court rules for ISL, the bomb will go off in 2024. By then, it will be far too late to avoid the blast.
