We often hear about the United States as having a “republican form of government.” That comes directly from Article IV, Section 4, of the United States Constitution, which states emphatically: “The United States shall guarantee to every State in this Union a Republic Form of Government.”
An extreme majority of the United States Supreme Court appears ready to make little difference to that language. That is, to force a Republic government in the country by allowing the state legislatures to set their own electoral rules, without interfering with their governors or the state councils.
The Supreme Court will hear arguments later this year in Moore v. Harper, a case that raises the question of whether a state legislature, acting in its entirety, can make laws governing state elections, even laws that conflict with state laws. The facts are that North Carolina’s Republican-controlled legislature approved a new ban that was struck down by the state’s Supreme Court earlier this year as “extraordinary and arbitrary.” That project had violated the constitution of the country, so that should have been the end of it.
But the dispute, which is about a few innocent words in the US Constitution, has been raging in the courts since the three members of the Supreme Court took a breather in the decision of Bush v . That in 2000. The words in Article I, Section 4, says: “The Times, Places and Method of holding Elections for Senators and Representatives, shall be determined in each State by its Legislature …” and, possibly, all other rules for federal elections held in the state. Their theory is called the “independent law court theory” (ISLT).
If the Supreme Court agrees with the GOP-controlled legislature, it will be a godsend for the Republican Party on two critical counts. First, it will allow disaffected GOP legislatures to go ahead and pass ballot measures that are unpopular with all other parties. Governors, who are of course more politically moderate than legislatures who suffer because they have to appeal to statewide constituencies, and state supreme court judges, who are appointed by those governors or face their own elections nationwide, they will not be able to oppose those actions.
Secondly, Article ll, Section 1, of the Constitution uses the same wording when electing candidates to the electoral college, that is, “Each state shall elect. [Electors], in such manner as the Legislature may direct.” The legislature representing the legislature will provide the certainty of the type of efforts made by the GOP fanatics in the 2020 elections to produce some presidential election bills. What a gift for Justice Clarence Thomas’ wife, Ginni, who worked hard to get lawmakers in at least two states, Arizona and Wisconsin, to submit slates of candidates to the electoral college that favor President Trump. Judge Thomas has an obvious conflict of interest in this case and must recuse himself, despite the risk of marital discord in his home.
While the legislature’s decision would be a major coup for the GOP, it would be a blow to the rule of law in America. The idea that a state legislature, acting on its own, can set important rules governing state elections is an affront to our constitutional system of checks and balances.
Those who wrote the Constitution were motivated by the idea that the power of the government should be divided into three branches of government – executive, legislative and judicial – so that each branch can work as and explore other strengths. The legislature passes a law, which becomes law only with the approval of the executive branch, and the state courts have the power to make it. It’s as simple as that. The framers of our Constitution would be dismayed to think that our supreme court would even consider the evil plan that the legislature is peddling.
As many constitutional scholars have pointed out, there is no reliable legal or historical basis to support the ISLT. The Conference of Chief Justices, made up of the chief justices of the courts of last resort in the US states and territories, acquitted themselves by summarily dismissing this theory and pointing out the serious harm it causes to the system. our federalist. I have been a member of this group and can testify that it would only take such action if it considered the threat in the federal courts to be extreme. The expectation that the Supreme Court can deprive the supreme courts of the state of the power to decide on the stupidity of the state legislatures is a violation of the law of the 10th Amendment to the Constitution of US. The only support for the theory comes from a fraudulent document that the legislature relied on in its Supreme Court legal report.
Republican-appointed Justices have done yeoman service for their party by systematically destroying the voting rights of people of the other party. Accepting ISLT is a bridge too far, given its lack of reliable legal, historical or commonsense support.
The Supreme Court should dismiss this case because of the serious harm it poses to our democratic system. If we want to have a fully Republican government, let it come with fair competition at the state’s ballot boxes.
Jim Jones is a Vietnam War veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017), including time as associate justice in the title.