Election-rigging simplified
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Breaking news of Donald Trump’s forever-imminent indictment on federal and state charges came so thick and fast on Wednesday that I missed this detailed New Yorker essay from Andrew Marantz until MSNBC’s Chris Hayes interviewed him on set last night.
“How a Fringe Legal Theory Became a Threat to Democracy” charts the journey of the independent-state-legislature theory (I.S.L.T.) from crank theory supporting the Bush v. Gore decision that settled the 2000 presidential election to one mainstream enough to reach the U.S. Supreme Court again. Marantz reviews this one, Moore v. Harper, from North Carolina:
In 2021, with Tim Moore as the speaker of the North Carolina House, the majority-Republican legislature drew gerrymandered congressional maps—that is, even more egregiously gerrymandered than usual. Several voters (one of them named Becky Harper) and a handful of nonprofits (including Common Cause, where [democracy activists Sailor]Jones works) sued to block the implementation of those maps, and the state Supreme Court ruled in their favor. The U.S. Supreme Court was asked to decide whether the legislature’s maps should stand—and, by extension, whether the state court had the power to review them at all.
I.S.L.T. advocates contend that the Constitution gives plenary power to state legislatures over the conduct of elections. Not even the courts may review their decisions for compliance with the state or federal constitution.
“That’s just not how it works,” said legal scholar Vikram Amar who, with his brother Akhil, published a law-review article last year entitled “Eradicating Bush-League Arguments Root and Branch” that took on I.S.L.T. another scholar called “right-wing fanfic.”
Harvard’s Laurence Tribe described the lack of historical support for the theory, saying, “This wasn’t something that had an organic development in the law. It was, frankly, something that was pulled out of somebody’s butt, because they thought it was a convenient way to fulfill a short-term partisan agenda.”
Like putting a thumb on the scale in a presidential election. The theory was an aside in 2000. In 2020, I.S.L.T. found its way into Team Trump’s efforts to overturn the election he lost by seven million votes.
A familiar cast of MAGA characters were involved in promoting I.S.L.T. for overturning the assignment of electoral votes in key states: Rudolph Giuliani, Sidney Powell, John Eastman, Cleta Mitchell, Ginni Thomas.
The entire piece is worth the read.
Why I.S.L.T. has come to a head in North Carolina is familiar territory. The GOP has worked assiduously at rigging the political game here since taking control of the legislature after the 2010 REDMAP wipeout:
American activists of all stripes, paraphrasing Justice Louis Brandeis, have long referred to the states as laboratories of democracy. But the adage has started to reverse itself: in the past two years alone, there has been one book called “Laboratories Against Democracy” and another called “Laboratories of Autocracy.” North Carolina is often cited as a paradigmatic case. It’s a purple state—Barack Obama won it in 2008 and lost it in 2012—but in many recent years Republicans have enjoyed super-majorities in the legislature, and they have used this power to grant themselves more power. After the Republican Pat McCrory was elected governor, in 2012, the state passed what voting-rights advocates called the monster election law—a combination of voter-I.D. requirements, reduced access to polling sites, and other obstacles that made it, at the time, among the most suppressive laws of its kind in the country. (A court later overturned the law, ruling that it would “target African Americans with almost surgical precision.”)
[…]
In 2016, the anti-democratic maneuvers grew more brazen. McCrory ran for reëlection and narrowly lost, but he didn’t concede to his Democratic successor, Roy Cooper, for nearly a month, citing “serious concerns of potential voter fraud.” This received less attention than it might have, given the Presidential election that happened at the same time. (McCrory recently told me that he now believes Cooper’s victory was legitimate, although he mentioned that the election had included some “bad things” and “unfortunate coincidences,” including faulty Dominion voting machines.) During McCrory’s remaining time in office, the legislature convened for a special session and stripped the incoming governor of a wide range of powers. “Partisanship, hardball politics—that we were familiar with,” Mike Woodard, a Democratic state senator, told me. “But not just pulling the rug out like that.”
N.C. Democrats fought battles in court over redistricting and newly restrictive voting laws since 2011. Much of that I’ve covered in past posts. What’s changed today is that Republicans have tired of losing in court. Now they want to cut the courts, including the state Supreme Court, entirely out of the review process.
“We can’t control who wins statewide office … and we can’t control who’s on the state Supreme Court,” Hayes commented last night [timestamp 42:40], speaking in the voice of the G.O.P. “The one thing we’re sure we can always control are two things in America: state legislature bodies (because we gerrymander them) and the federal judiciary which we pack with our people. And it just so happens that our constitutional theory gives these two entities the most power over how elections are run.”
“Such a strange coincidence,” snarked Marantz.
What could happen when SCOTUS rules on Moore v. Harper ?
The conventional wisdom was that the three liberal Justices would almost certainly reject I.S.L.T., and the three most conservative Justices almost certainly would not. This left the three Justices who currently pass for moderates—the three who worked for the Bush legal team in 2000—as the likely swing votes. Not long ago, I met up with Chris Shenton and his colleagues at the Southern Coalition for Social Justice, in an office park on the outskirts of Durham, as they prepared potential arguments in Moore v. Harper. “There are a couple of ways to split the baby on this one, but not many,” Shenton told me. “You either think the whole concept of I.S.L.T. is coherent or you don’t.” In 2015, in a case called Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court had rejected a version of I.S.L.T. Another coalition lawyer, Hilary Harris Klein, said that it would be highly unusual for the Court to reverse such a recent major precedent.
“They could probably find a way,” Shenton said.
“Well, sure,” Klein said, “they could do anything, if logic and principles go out the window.”
In the wake of the Dobbs decision overturning Roe? Don’t count on logic and principles.
Meantime, Republicans in Raleigh last week introduced a new set of election hurdles for voters to overcome (Senate Bill 747). Cleta Mitchell met with Republican leaders in Raleigh about the bill before it became public. They bristled at the idea that Cleta Mitchell influenced its drafting, reports WRAL:
A main focus of the bill is mail-in voting. It would add new obstacles to people seeking to vote by mail. It would enact an earlier deadline for mail-in ballots to arrive and still be counted. And it would make it easier for people to challenge the validity of others’ mail-in ballots. The bill also would ban outside grant funding for elections and enact more aggressive rules for removing people from the list of registered voters, among other changes.
That description is more anodyne than the actual implications. Election officials must maintain a record of anyone giving assistance to a voter inside the voting booth. The bill also requires “county boards of elections to use verification software to check the signatures of voters noted on executed absentee ballots before those ballots are accepted by the county boards.” How they manage that is their problem. Can you say, “unfunded mandate”?
“And here they go with advice from election deniers and fraud perpetrators,” Cooper tweeted last Thursday. “Don’t be fooled. This isn’t about protecting elections. It’s about rigging them to help Republicans.”
Marantz attended a bipartisan forum in Hickory last year meant to reassure voters about the integrity of North Carolina’s election. (I attended the same one when it came to Asheville.) Marantz writes:
The audience raised several stubborn narratives about voter fraud, familiar from Trump rallies and right-wing memes, and a series of election officials took turns patiently demystifying the process. Still, at least a few listeners were able to remain mystified. A local I.T. official started a sentence “When it comes to cybersecurity . . .” at which point he was interrupted by a heckler, who shouted, “No such thing as cybersecurity! Anything that’s hooked up to the Internet can be hacked.” The I.T. official did his best to explain that North Carolina’s voting machines were not—in fact, could not be—connected to the Internet, but this seemed to have no effect. Afterward, in the parking lot, I approached the heckler, identified myself as a journalist, and asked if anything he’d heard had changed his mind. “Go pound sand,” he said. He got in his car and slammed the door. Then, perhaps worried that he had been unclear, he rolled down his window, shouted, “Go fuck yourself,” and peeled off.
The GOP has cultivated a market for this stuff for decades. Trump shot the conspiracists full of adrenaline, just not in the middle of Fifth Avenue.