For the second time in just over a month, American democracy is at the barrel of a gun. And for the second time, we may get lucky and dodge the bullet. The question we need to ask now is why the gun’s still hanging around, threatening to be fired again.
The first time, it was a worry about efforts to deny, perhaps violently, the midterms’ outcomes after a drumbeat of threats against election officials. This time around it’s an effort to use the Supreme Court to inject uncertainty, instability, and perhaps worse chicanery into federal elections.
At the oral hearing in the case of Moore v. Harper on Wednesday, it seemed that a majority of the Court is likely unwilling to embrace this effort. But the very fact it’s being heard—and that three supposedly originalist Justices—Alito, Thomas, and Gorsuch—are apparently raring to embrace a claim that advances the Republican cause while flouting their core judicial philosophy—should give us serious pause: A bullet dodged today doesn’t mean the gun was holstered.
At issue is a congressional district for North Carolina’s federal elections that is heavily gerrymandered in the Republican’s favor. While the North Carolina supreme court struck the redistricting down under the state’s constitution, its authors in the state legislators appealed to the Supreme Court. They invoked language in Article I of the Constitution to the effect that federal election rules are to be made “in each State by the Legislature thereof” unless Congress intervenes. The force of their position, clarified in the legislators’ November reply brief, is that this means what it says: “no matter how specific a state constitutional provision is, it cannot be enforced.”
As both scholars and excellent amicus briefs have pointed out, the problem with this argument is that there is no evidence that the Framers, or anyone in the early Republic, thought this was true. State legislatures are created in state constitutions, and their election statutes have always been subject to their limits. The first judicial opinion to recognize something like the NC legislators’ theory was a plurality opinion by Chief Justice Rehnquist in the controversial 2000 decision Bush v. Gore. Even there, Rehnquist offered no hint a state legislature was not bound by the constitution that birthed it.
The absence of historical evidence or legal precedent for the NC legislators’ theory is not surprising. There was a deep commitment to federalism at the Founding. Denying a state’s people power to fashion their own representative bodies would have been in flagrant breach of states’ sovereignty. The blank historical record is not confounding. It’s predictable given our core constitutional commitments.
What then of the language of Article I? Here, we must remember that the Constitution was written for citizens, not grammarians. It is terse, even poetic. It was not crafted for the quibble-happy lawyer. Perhaps the most famous example is the First Amendment. It talks of what “Congress” can’t do. Yet it surely didn’t mean to allow the President to censor speech or ban religions.
Allies of the NC legislators have suggested the Court should step in for more presentist reasons. They claim runaway state courts are the problem. This is a bit like a domestic abuser complaining about the police violated his liberty as he is pulled off his bruised spouse. Recall that the NC legislators had just gerrymandered their own districts, as well as federal ones, to keep themselves and their party in power. Lest there be any doubt about the absurdity of the runaway state court argument consider Ohio. There, Republican state legislature successfully ignored and bulldozed over several state court judgments finding illegal gerrymanders.
In contrast, a big win for the NC legislators would mean, at best, chaos. Federal and state elections would be conducted under different rules. Election administrators could not respond to unexpected contingencies (like, say, a pandemic). And when state election law was unclear, there would be no one on hand to clarify it.
Worse, consider a measure introduced into Arizona’s state house by Republican Shawnna Bolick, which would have allowed the legislature “at any time” to “revoke” the certification of a presidential election. The risk of this sort of ill-motivated legislative interference in elections—which the federal Constitution does nothing to address—would be dramatically amplified by the NC legislators’ theory.
Despite all this, the conservative majority of the Supreme Court seemed divided on Wednesday. Only three, Justices Alito, Gorsuch, and Thomas, seemed eager subscribers to the broad version of NC legislators’ theory. Both Chief Justice Roberts and Justice Kavanaugh pointedly asked about the history and precedent undercutting the theory, while Justice Barrett asked for principles that would stop federal courts from being sucked into state election fights.
Why then do litigants come to the Supreme Court, waiving supposed evidence of the Founders’ intent that has been roundly discredited as misleading? And why did Wednesday’s oral argument suggest that three Justices are so keen to? Having all penned recent opinions that draw deep on history as a source of constitutional meaning, why would these Justices seem so eager to abandon their judicial commitments and embrace so radically partisan a position? At minimum, this should put paid to the facile claim that being an originalist constrains judges.
A superficial answer is to see Trump at the root of both election violence and also this lawsuit. Indeed, the law professor and Trump advisor John Eastman not only leaned on a theory of Article I’s Election Clause in urging a constitutional coup. He also filed an amicus brief (using slightly more measured tones) in the Court.
But the surprising levels popular support for election violence among up to a fifth of Americans, like the breadth of apparent judicial support for a plainly false ‘originalist’ claim, demands a deeper explanation. After all, neither Justice Alito nor Justice Thomas were appointed by Trump, although both have close links to political movements aligned with the former president.
Both phenomena instead suggest a much more profound dissatisfaction with the orderly operation of democracy. Both imply a deeply felt resistance to popular rule in favor of a political order of yesteryear that has the trappings, not the substance, of democracy. Trump himself may or may not be fading from view. But such well-rooted resistance to the idea of fair and orderly elections is not going away. Whatever the Court ultimately decides, we will be living in the shadow of these antidemocratic fever dreams for some time to come.