IIt is well known that the intense competition between democracy, authoritarianism and fascism is playing out across the world in various ways, including in the United States. This year’s US Supreme Court term, which began this week, is a stark illustration of how the situation is actually worse than most people realize.
A supermajority of six unelected ultraconservative justices — five of whom were benched by presidents who failed to win the popular vote — have aggressively seized another batch of cases that will allow them to move US law forward. extreme right and threaten the United States. democracy in the process. The prime example of this disturbing shift is a little-known case called Moore v. Harper, which could lock in right-wing control of the United States for generations.
The heart of the Moore case is a once fringe legal notion called the Independent State Legislature (ISL) theory. This theory posits that an arcane provision of the US constitution authorizing state legislatures to set “time, place and manner” rules for federal elections should not be subject to judicial review. In other words, state legislatures should have absolute power to determine the conduct of federal elections without interference from the courts.
Think about this theory in the context of the last US election. After Joseph Biden resoundingly defeated Donald Trump in both the popular vote and in the Electoral College, Trump tried to mount a massive intimidation campaign to steal the election that took place when he took office. storming of the Capitol Building on January 6. But behind the scenes, the legal heart of this attempt was to convince the numerous Republican-controlled state legislatures (30 out of 50 states) to send lists of fake Trump voters from states like Arizona, Georgia and Michigan where Trump actually lost the popular vote. .
Had Trump been successful, he would have “won” the election via the Electoral College (itself an anti-democratic relic) and could have stayed in office for another term. If the Supreme Court buys the theory in the Moore case, it could easily happen in 2024 and beyond. In fact, Republicans may never lose another election again if this theory becomes law. Or in other words, whether the Republicans win or lose the election via popular vote won’t matter because they can stay in power regardless.
It’s not democracy. And that would put the United States squarely in the same category as authoritarian countries with illiberal rulers like Hungary, Poland, Turkey, and Russia. Each of the leaders of these countries ostensibly “won” elections that were structurally rigged to virtually guarantee that they could not lose.
It is troubling that the Supreme Court has used its increasingly diminished credibility with the public to take on a case that has no real purpose other than what I describe in this column. In the United States, our highest court decides only about 70 cases a year out of the 7,000 petitions for review filed. It’s a relatively lazy court. In contrast, the Supreme Court of Brazil decides about 100,000 cases per year. If the US court agreed to accept the Moore case for consideration, it was almost certainly considering approving this rogue ISL theory, which could blow up elections and democracy in the United States as we know it.
Context is important. This situation did not just come out of nowhere, but is really the product of a decades-long strategy by a decades-old coalition of corporations and right-wing religious fundamentalists to take control of the US government.
Recent US history shows how spectacularly effective right-wing money lenders, representing America’s wealthy and corporations, have been in buying control of our political system. These forces correctly perceive that if democracy is allowed to exist in a free and neutral manner, corporate profits will be diminished and the mighty fossil fuel industry will be phased out. They therefore organize themselves to prevent this from happening.
This right-wing fundraising network simply could not exist with the enormous power it has amassed without the US Supreme Court’s Citizens United case, which laid the groundwork for the current takeover of the Supreme Court. An industrialist has just handed over his entire $1.6 billion fortune to an organization controlled by Leonard Leo, the brilliant mastermind behind the pro-corporate Federalist Society, which essentially put the six ultra-conservatives in the field.
If the court approves the ISL theory, Republican-controlled legislatures will also be able to gerrymand political districts to lock in permanent control of federal elections without judicial oversight. Gerrymandering is a fancy term to describe another method of voter suppression in the United States: establishing district maps to ensure that progressive or minority candidates simply cannot be elected except in pre-approved districts. This explains, for example, why in the state of North Carolina, Republicans control eight of the 13 seats in the United States House of Representatives while the Democratic Party won more than 50% of the vote statewide. in the last elections.
The Moore case would effectively deprive people of the right to fair elections by placing voting power in the hands of a small group of state-level officials who would map out the districts. In a presidential election, these officials could determine which list of voters will be presented to the Electoral College, regardless of the outcome of the state’s popular vote.
In the gerrymandered map at the heart of the Moore case, an evenly divided popular vote in North Carolina would have awarded 10 of the state’s 14 seats in the House of Representatives to Republicans.
While many are focused on the January 6 proceedings, the real coup unfolded quietly in the Supreme Court without a single shot being fired. With the judiciary poised to deliberate on a matter that could significantly weaken the other branches of government, it’s never been clearer that it’s time to rein in the power of our least democratic institution.