Reinterpreting this word in the Constitution could change US democracy

The next may be a complete rethinking of American democracy. If a legal theory based on the word “legislature” is adopted by the Supreme Court, in theory, state legislators can have the new power to ignore voters and choose a president.

A conservative majority court has agreed that the state’s GOP-controlled legislature will hear a proceeding in North Carolina against a state court that has destroyed a map of Congress that said it was a member of the House of Representatives.

Here’s what you need to know:

What is the theory of an independent state legislature?

The Constitution specifically refers to the “legislatures” of each state that determine the time and method of federal elections.

Proponents of the “Independent Legislature Claim” argue that the Constitution does not appoint other parts of the state government (including courts) and therefore should not have the authority to check the legislature on the subject of federal elections. ing. Theory argues that even if state constitutions and laws give power to courts and governors, the legislature should be able to ignore them.

The Seed of this ideaAccording to the Liberal Brennan Justice Center, it comes from the consent of then-Chief Justice William Rehnquist in the Bush v. Gore decision that settled the 2000 presidential election.

Why is this coming now?

A parliamentary map created by a GOP-managed parliament in North Carolina to benefit the Republicans was destroyed by the State Supreme Court earlier this year. The state is politically divided, Parliamentary map It is possible that the Republican Party has won two parliamentary seats. The state court finally adopted a more uniform map drawn by experts who could win seats in North Carolina for Democrats. Republicans in Tarheal want to allow the US Supreme Court to ignore the state court and use maps suitable for the GOP for future elections after the mid-term of this year.

What is the worst scenario?

CNN’s Ariane de Vogue and Gregory Krieg wrote:

The Washington Post Editorial Board On Tuesday, the Supreme Court, which had already stated that it was not authorized to deal with gerrymandering, said it could deprive state courts of that authority as well. According to the post, the final result is:

What is the argument for?

Even if this new interpretation destabilizes US democracy, the wording of the Constitution is important.

“The election clause does not empower state courts or other states government agencies to secondarily infer legislative decisions,” he said. Republicans insist In that case.

This is Very detailed academic paper Friendly to the idea of an independent legislature by Florida law professor Michael Morley.

Why is this theory in the spotlight now?

Evan Bernick, a professor of law at the Faculty of Law, University of Northern Illinois, has written a new book focusing on the Article 14 amendment. In his email, the theory “is (unfortunately) as old as the founder, but uses a tradition that has begun a new life in recent years. It is only allowed to be ruled by some people. It’s a tradition that is being done, “he told me. And the rest are really ignored as somehow less than “people”. “

Who would benefit if the Supreme Court adopted this doctrine?

Republicans will do so. Democrats currently have a majority in parliament, but Republicans have a clear advantage at the state level. Control over 60% Of the state legislature.

What does the Constitution mean by “legislature”?

I spoke with VikramAmar, Dean of the University of Illinois Law School. He recently published an article with his brother Achill Amar of Yale Law School, Destroy the concept of an independent state legislature As “garbage”.

He argues that conservative judges who see themselves as the original interpreters of the text of the Constitution cannot legally impose this new doctrine, which he abbreviates as “ISL”, on the country. did.

In addition, the constitutional writers had a broader view of the term “legislature” in line with allowing courts to protect the rights of state voters.

“It is inconsistent with the practices of the 1787 Legislature and Constitution, ignoring the clear precedent of the 100 years from 1916 to 2019,” Amar said of the ISL.

A legislature that ignores courts. Why does this sound familiar?

Supporters of former President Donald Trump have ignored the results of the 2020 presidential election by Republican-controlled legislatures in major states, end-running around the elections he lost, and whitehouse Trump. Amar called the project “ISL of Steroids”.

But if the Supreme Court fully accepts ISL, that could be a reality. Amar throws out the hypothesis that the legislature simply decided not to be bound by voters before the election, and then proposed its own slate for the electorate.

“If you buy an ISL, they can do that,” Amar said. “You probably can’t do that without buying an ISL, because in most states the state constitution says that voters are chosen by the people.”

Do voters often disagree with their legislature?

Since the legislature is elected by voters, it can be argued that it should not be disturbed by state courts during the presidential election process. After all, courts are less accountable to voters than legislators.

Voters, on the other hand, regularly vote for presidents other than the political parties that control the legislature.President Joe Biden has several states Republican-controlled legislature He was named Trump in 2020, for example in Georgia, Arizona, Pennsylvania, Michigan, and Wisconsin.

What is the role of Gerrymandering in all this?

Amar argued that the legislature was a very gerrymander and often controlled the state more than one party favored among its citizens.

“You may have 40% of the heart of the state, but if you are currently in control of the parliament, you can distribute that 40% of the support and make sure you get 60% of the district. “He said.

Is this a new form of democracy?

A complete reinterpretation of the Constitution to give the legislature a superpower for elections would be extreme. However, there is increasingly open opposition to the idea that voters should call shots. Politicians seem to have no problem supporting the idea that only voters who agree should call the shot and voters who disagree should be blocked.

Senate minority leader Mitch McConnell, who effectively created a conservative majority of the Supreme Court in a somewhat relevant context, is a candidate for the Democratic President’s Supreme Court, whose Republican-controlled Senate was elected by voters. I essentially promised not to confirm.

What does the court do with independent state legislature theory?

CNN’s de Vogue was elected by the state court in March by four Supreme Court judges (Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh). “

Amar told me that Kavanaugh has been particularly quiet lately.

In addition, I have some questions about the views of the latest conservative judge, Amy Coney Barrett.

What is certain is that the High Court will consider this theory directly in the next term.

Source: www.cnn.com