The US Supreme Court “will do what they did for presidential elections Roe v. Wade“Validating the strange idea that legislators have unchallengeable power,” said Daniel Squadron, a former New York state senator. The States Project, a Democratic-aligned group that has turned statehouses blue.
The case turns on the one-time “independent state legislature” doctrine invoked by former President Donald Trump’s legal team in an unsuccessful attempt to overturn the 2020 presidential election. It holds that the Constitution gives state legislatures powers that are beyond the reach of governors, voters, and state courts.
According to some, the court’s validation of that theory could pave the way for a future version of the Trump campaign’s justification. A fake voter scheme in which campaign officials put forward “alternative” slates of voters in swing states that went for Biden. (In the Electoral College, 538 individual electors represent the popular vote.)
“It’s a real risk [legislatures] Votes cast legally will not be counted.
~ Carolyn Shapiro, Professor of Law, Chicago-Kent College of Law
“The capstone meaning of this fringe legal doctrine is that state legislatures can select their own presidential electors, effectively nullifying the popular vote in those states,” warned Lala Wu, a San Francisco attorney. Sister District, a grassroots organization that also supports state legislative candidates.
But a less radical endorsement of the principle also allows state legislatures to use “whatever created criteria they want” to exclude disputed ballots in violation of state constitutions, said Chicago-Kent College of Law professor Carolyn Shapiro. can enable Founder and Co-Director of the Chicago-Kents Institute on the Supreme Court of the United States. “We are in a situation where you have people making completely baseless claims of fraud and where the belief that fraud is happening has become such a strong article of faith among party members. There is a real risk that [legislatures] Votes cast legally will not be counted,” he said.
The decision of the court should be announced Moore v. Harper has alarmed Democratic activists who were already on high alert for recent reasons Promulgation of state laws It also politicises, interferes and criminalises election administration. These Democrats argue that voters should work to ensure a free and fair presidential election in 2024 by electing Democratic state legislators in November who will count all votes cast in key swing states.
Squadron, who has long argued that Democrats ignore statehouses at their peril, isn’t putting his faith in the U.S. Supreme Court. In election disputes leading up to the 2020 election, four of the nine justices — Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Cavanaugh — signaled Some level of support For the Independent State Legislature principle. Justice Amy Coney Barrett to A main vote On the case.
Democrats are backing candidates like Rachel Hood, who is running for re-election to the House of Representatives in Michigan, where nearly half of Republican state legislators have taken steps to impeach or overturn the 2020 election..
“Two ways to preserve a presidential election are to hope that Amy Coney Barrett breaks ranks with her conservative allies — or to ensure that there are enough states that will honor the vote in the presidential election,” Squadron said. ” said the squadron. His States Project is doubling down on efforts to flip the Michigan, Pennsylvania, and Arizona statehouses with narrow Republican majorities.
They are supporting candidates like Democrat Rachel Hood, who is running for re-election to the House of Representatives in Michigan, where About half Republican state legislators have taken steps to discredit or overturn the 2020 election. She’s seeing a difference in voters this cycle: Voters are more guarded at the door. “They hesitate. Some people immediately ask, ‘Which party are you with?’ And then, once you identify as a Democrat, the conversation immediately becomes much easier. Their body language changes,” he said.
Hood’s first campaign was in 2016 for drain commissioner in Kent, a Republican county that has tended to be more liberal. He said voters in his newly drawn House district are deeply concerned about the state of American democracy, and that concern cuts across demographic groups and even party affiliation. (His campaign isn’t doing voter outreach to hardcore Republican voters.)
“We anticipated that it would be very difficult to get out the doors in the suburban parts of the district, but we’re hearing from a lot of people who we would consider independent voters that they’re not even considering voting Republican,” Hood said. . Many of them were watching the Jan. 6 committee hearing in July when we spoke. “They come to the door, and they’re just shaking. They are very angry,” Hood said.
Will this outrage be enough for other Democrats in Hood and swing districts? Democrats have been encouraged by One way vote To repeal a constitutional amendment in Kansas that would have made it possible to ban abortions in the state. High-profile US Supreme Court decisions on guns, climate change, and especially abortion rights have contributed to fundraising for the Democratic Legislative Campaign Committee and its affiliates. Its fastest ever.
Democrats have another reason for hope: Thanks to independent redistricting commissions and court cases, some states have More competitive They were in the last decade when Republican gerrymanders locked in control, with particularly negative effects. Voters of color.
“What we saw in 2020, and what we’ll likely see again, are multifaceted efforts that attack all different parts of the voting system, all with the ultimate goal of getting their person into power.”
– Tom Wolfe, Deputy Director, Brennan Center
But there are serious headlines. The party in power usually loses seats in the midterms. Add to that rising inflation Fastest rate In 40 years, a long epidemic, and the supply chain snarls. President Joe Biden’s approval rating is Just above 40%. Then there’s the Democrats’ track record. The party spent a record amount trying to flip more than half a dozen state houses in 2020, a reapportionment year. The party lost both chambers in New Hampshire and Failed to flip a single state house Despite Biden’s victory in his column.
Wu found some hope in the autopsy of the sister district’s 2020 race. “It’s widely known that Democrats haven’t changed any state legislatures,” Wu said. “But what’s less widely known is that it didn’t take that many votes to flip those state legislatures.” Biden won Michigan by just over 154,000 votes, but Democrats lost the Michigan state House by a margin of 8,600, according to Sister District. Analysis Some of those who voted for Biden supported the “Republican”. [legislative] the candidate But most of them did not vote at all,” he said.
Wu’s group identifies candidates like Hood who are in close growth who are also “winnable.” Her volunteers “raise money, make phone calls, write postcards and hopefully travel and knock on doors this year,” she said.
Of course, legislative victories by Hood and other swing state Democrats won’t address the electoral system’s weaknesses exposed by Trump’s attempts to overturn the 2020 election.
“What we saw in 2020, and we’ll likely see again, and again, is this multi-pronged effort that attacks all different parts of the voting system, all with the ultimate goal of getting their person into power. ,” said Tom Wolfe, deputy director. with the New York-based Brennan Center’s Democracy Program.
According to Wolf, state courts — and gubernatorial vetoes — provide the main protections for voters. If the principle of independent state legislatures becomes the “law of the land,” those checks and balances disappear, which means that when you’re fighting a multiparty effort to keep someone in power illegally. , then you have half or 75% less weapons,” Wolf said.
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