Originally published on RealClearPolicy.com
American democracy faces numerous threats including pay-to-play governance, voter suppression, a deceit-infested information universe, politicized Supreme Court, Republicans covetous of one-party rule, along with gerrymandering and a malapportioned Senate accountable for lawmaking gridloc.
The Supreme Court should be the ultimate bulwark against these dangers. But its clutch of Republican justices have tasted the one-party Kool-Aid. Exemplified by the pending Roe ruling, they are ideologues comprising the first partisan Court in American history, and responsible for the institution’s deterioration. All but Justice Thomas were appointed by presidents George W. Bush and Donald Trump who lost the popular vote. These ideologues are shielding their party’s lawmakers from voter accountability by abusing the Court’s opaque shadow docket with anonymous rulings rolling back voting rights. They have also used the traditional merits docket to weaken voting rights, including Shelby, Abbott, Husted, Purcell, and Brnovich.
Far more alarming to legal experts, they seek a sweeping constitutional shield for voter suppression and election rigging by Republican state legislators. Central to that constitutional shield is empowering the little-known sophistry called the Independent State Legislative doctrine (ISL). A Supreme Court embrace of the obscure ISL doctrine would open a legal pathway for Republican legislators in swing states to establish nationwide one-party rule regardless of voters.
Independent State Legislature Doctrine
Article 1, section 4 of the Constitution assigns responsibility for election rules to state legislatures. That language is being misconstrued to vest all authority solely with those bodies by four Republican Supreme Court Justices (Alito, Gorsuch, Kavanaugh and Thomas) with a fifth, Barrett, poised to join. Their interpretation (the ISL doctrine) contradicts the Founders’ original intent. That intent was promptly spelled out by 4 state legislatures immediately after 1787 with the assent of President Washington and other Founders: The generic term “legislature” encompasses the entire state legislative apparatus, including governors who must approve legislative bills and courts who interpret them. In fact, half the states identify Lieutenant Governors as members of the legislature with the right to cast votes.
In contrast, the ISL doctrine contends that state legislatures enjoy plenary authority over election rules untethered from governors and state courts. Over the past two centuries, legislators, justices, the legal profession and Congress have found that superficial interpretation unpersuasive.
ISL Will Facilitate Voter Suppression and Election Rigging
Should the Supreme Court reverse course and embrace the ISL doctrine, voter suppression by Republican legislatures will accelerate. Canny new voter-ID laws enacted in Texas, for example, caused mail-in ballot rejections to soar in the March primary election, especially from Democrats. The ISL doctrine would also shield gerrymandering, a practice of state legislatures from both political parties. In 2018, for instance, Democratic candidates in Michigan received a majority of statewide votes, yet won only 42% of state senate seats due to gerrymandering by the Republican legislature. The Supreme Court ruled (Rucho, 2019) that gerrymandering should be remediated by state courts, a solution that would be no longer tenable under the ISL doctrine.
ISL also opens the door to Republicans overruling voters. Republican legislatures in swing states, including Georgia and Arizona, are replacing nonpartisan election officials and election boards with party partisans. Responsible for counting and certifying election results, these Republicans could jigger vote counting, rigging election outcomes free of current judicial oversight or interference.
Presidential elections in 2024 and thereafter are similarly endangered. Presidents are chosen by state-appointed electors in the quadrennial Electoral College. Since 1880, that process has been a bipartisan collaboration of state legislatures and governors, by tradition, guided by the statewide popular vote. However, the Constitution (Article 2, Section 1) leaves the selection of electors to state legislatures. And the ISL doctrine would enable nefarious Republican legislatures in swing states like Georgia to override the popular vote and select electors favoring their Presidential candidate. Guardrails are too flimsy in current law including the 1887 Electoral Count Act to prevent this corruption.
Derailing the ISL Doctrine
Should the ISL doctrine be adopted, only one pathway exists to negate it. Article 1, Section 4 grants Congress the last word regarding federal election rules and the conduct of the Electoral College vote. Alarmed Congressional Democrats have adopted this clear constitutional authority to propose voting rights legislation that includes corralling the ISL doctrine. But it is being filibustered by Senate Republicans. Senate Democrats could override that filibuster. Yet, two of their own (Senators Manchin and Sinema) support the Republican filibuster – believing an exception to the filibuster is a graver danger to American democracy than Hungarian-style one-party rule.
Manchin mistakenly believes the filibuster was established by the Founding Fathers; in reality, they hated it. The filibuster was created by accident in the senate in 1837 and first used only in 1841. (No such mistake occurred in the House of Representatives which is why filibusters are not permitted, exactly as intended by the Constitutional drafters.) Manchin seems unaware that the Founding Fathers actually despised and feared it so much they wrote it out of the Constitution – Alexander Hamilton terming it “a poison” to democracy.
It may be that Manchin and Sinema are actually ignorant of the Founding Fathers’ abhorrence of the filibuster. And they may also be ignorant that a seminal goal of the Constitution was to prevent one-party rule in America.
Or do the pair believe their reading of history and of democracy trumps the cumulative wisdom and experience of Alexander Hamilton and the other Founders?