(The Guardian) Steven Donziger, a human rights lawyer, environmental justice advocate and Guardian US columnist, writes today about a ‘terrifying case’ about to be heard by the US supreme court… It is well-known that intense competition between democracy, authoritarianism, and fascism is playing out across the globe in a variety of ways – including in the United States. This year’s supreme court term, which started this week, is a vivid illustration of how the situation is actually worse than most people understand.
A supermajority of six unelected ultraconservatives justices – five put on the bench by presidents who did not win the popular vote – haveaggressively grabbed yet another batch of cases that will allow them to move American law to the extreme right and threaten US democracy. The leading example of this disturbing shift is a little-known case called Moore v Harper, which could lock in rightwing control of the United States for generations.
The heart of the Moore case is a formerly fringe legal notion called the Independent State Legislature (ISL) theory. This theory posits that an obscure provision in the US constitution allowing state legislatures to set “time, place, and manner” rules for federal elections should not be subject to judicial oversight. In other words, state legislatures should have the absolute power to determine how federal elections are run without court interference.
Think about this theory in the context of the last US election. After Joe Biden defeated Donald Trump resoundingly in both the popular vote and in the electoral college, Trump tried to organize a massive intimidation campaign to steal the election which played out in the storming of the Capitol building on 6 January. But behind the scenes, the legal core of this attempt was to convince the many Republican-controlled state legislatures (30 out of 50 states) to send slates of fake Trump electors from states like Arizona, Georgia and Michigan where Trump lost the popular vote.
If Trump had succeeded, he would have “won” the election via the electoral college (itself an anti-democratic relic) and been able to stay in office. If the supreme court buys the theory in the Moore case, this could easily happen in 2024 and beyond. In fact, it is possible Republicans will never lose another election again if this theory is adopted as law. Or put another way, whether Republicans win or lose elections via the popular vote will not matter because they will be able to maintain power regardless.
A supermajority of six unelected ultraconservatives justices – five put on the bench by presidents who did not win the popular vote – haveaggressively grabbed yet another batch of cases that will allow them to move American law to the extreme right and threaten US democracy. The leading example of this disturbing shift is a little-known case called Moore v Harper, which could lock in rightwing control of the United States for generations.
The heart of the Moore case is a formerly fringe legal notion called the Independent State Legislature (ISL) theory. This theory posits that an obscure provision in the US constitution allowing state legislatures to set “time, place, and manner” rules for federal elections should not be subject to judicial oversight. In other words, state legislatures should have the absolute power to determine how federal elections are run without court interference.
Think about this theory in the context of the last US election. After Joe Biden defeated Donald Trump resoundingly in both the popular vote and in the electoral college, Trump tried to organize a massive intimidation campaign to steal the election which played out in the storming of the Capitol building on 6 January. But behind the scenes, the legal core of this attempt was to convince the many Republican-controlled state legislatures (30 out of 50 states) to send slates of fake Trump electors from states like Arizona, Georgia and Michigan where Trump lost the popular vote.
If Trump had succeeded, he would have “won” the election via the electoral college (itself an anti-democratic relic) and been able to stay in office. If the supreme court buys the theory in the Moore case, this could easily happen in 2024 and beyond. In fact, it is possible Republicans will never lose another election again if this theory is adopted as law. Or put another way, whether Republicans win or lose elections via the popular vote will not matter because they will be able to maintain power regardless.
