Last week the Supreme Court announced that it would hear arguments in Moore v. Harper, a challenge for the new congress map of North Carolina.
The long and short of the matter is that North Carolina’s Republicans proposed a gerrymander so blatant that the state Supreme Court ruled it violated the state’s constitution. Republicans tried to reinstate the legislative map, citing the “independent state legislature doctrine,” which states that state legislators have near-absolute power to set their own rules for federal elections. Once enacted, these rules cannot be reversed — or even revised — by state courts.
A Republican Supreme Court victory would, according to electoral law expert Rick Hasen, “radically change the power of state courts to rein in state legislators who violate the right to vote in federal elections. It could essentially neutralize the ability of constitutional courts to protect voters on the basis of provisions of state soil laws against violation of their rights. “
This radical interpretation of the election clause of the Constitution also extends to the presidential election clause, so that the state laws can allocate the voices of the electoral college during a presidential election year in any way they consider suitable, at every point in the trial. As I argued earlier this year, Republican-led states could pass laws that would allow them to send alternative voter lists, nullify voters’ will, and legally do what Donald Trump and his conspirators have pressured the Republicans in Arizona and Georgia to do illegally. According to the doctrine of the independent state legislator, the next time Trump tries the results of an election he lost, he will not need a crowd.
There are many problems with this doctrine that go beyond the results for which it was designed. Some are logical – the theory seems to suggest that state -related powers are somehow separated and independent of state soil laws – and some are historical. And one of the historic problems is the fact that Americans have never really wanted to entrust their state legislators with the kind of sweeping electoral powers that this theory would confer.
For most of the first 50 years of the presidential election, there was no unified method of voter allocation. In the first truly competitive race for president, the election of 1800, two states used a winner-take-all system where voters cast their votes to directly elect their voters, three states used a system where voters were chosen by district. , 10 states used a system in which the legislator simply chose voters, and one state, Tennessee, used a combination of methods.
Methods changed from election to election depending on partisan advantage. Virginia switched from the district system in 1796 to the “general ticket” for winning all winners in 1800 to ensure full support for Thomas Jefferson in his match against John Adams. In retaliation, Adams’ home is Massachusetts the district elections for legislative selection, to ensure that he would get all his voters.
This kind of manipulation continued until the mid-1830s, when every state of South Carolina saved the “general ticket.” (South Carolina wouldn’t allow voters to directly elect voters until after the Civil War.)
From 1812, however, you can start to see that the public and his chosen officials turn against this use of the legislative power of the state.
Jefferson’s Democratic-Republican Party was still in power. James Madison, his longtime friend and political ally, was president. But he, and the war he was now waging, were unpopular.
Most members of Congress had supported Madison’s call for war with Britain. But it was a partisan vote with most Republicans in favor and every Federalist against.
The reasons for war were clear. The “conduct of her administration,” Madison said in his message to Congress asking for a declaration of war, “presents a series of acts hostile to the United States as an independent and neutral nation.” These acts included impressing American seamen (“thousands of American citizens, under the protection of public law and of their national flag, have been expelled from their lands”) and attacking American trade (“British cruisers are in practice also from violating the rights and the peace of our shores.”).
When fighting Great Britain, the administration and its allies hoped to put the crown under pressure in a more favorable arrangement on these maritime issues. They also hoped to conquer Canada and break British influence in the parts of North America where it allied with native tribes to harass American settlers and hinder American expansion.
Those hopes were dashed, however, as an untrained and inexperienced American militia dove against British regulars. And as the summer progressed and brought him closer to the next presidential election, Madison was confronted at home with a defeat abroad and division. In New England in particular, his federalist opponents used their hold on local and state offices to hinder the war effort.
“In Hartford,” writes historian Donald Hickey in “The War of 1812: A Forgotten Conflict,” “the federalists tried to end loud demonstrations by army recruiters by passing a few city ordinances that curtailed public music and parades. .” In Boston, “the Massachusetts legislature threatened to confiscate federal taxpayers’ money if militia weapons owed to the state under an 1808 law were not delivered.”
Fearing defeat in the presidential race as a result of this anger and dissatisfaction with the war, Republicans did everything they could to secure Madison’s victory. Historian Alexander Keyssar describes these shenanigans in the book “Why Do We Still Have the Electoral College?” He notices:
In North Carolina, which had had a district system since 1796, the legislature announced it would elect voters itself: the majority feared Madison would lose the state to DeWitt Clinton, who ran with the support of both Federalists and dissident Republicans.
On the other hand, “The Federalist legislature in New Jersey announced just days before the election that it was canceling the scheduled vote and appointing its own voters.” And in Massachusetts, the Senate, led by the Republicans and the Lower House led by the Federalist, could not agree on a method for choosing voters. “Eventually,” Keyssar notes, “an extra term of office had to be convened to save the state to completely lose his election voices.”
Madison was re -elected, but according to Keyssar the attempt caused both sides to manipulate the outcome ‘fire storms of protest and reproach’. A number of lawmakers are said to attempt in the immediate aftermath and the years that followed to amend the constitution to end legislative selection of voters and to mandate district elections to the electoral college.
District elections, according to one supporting congressman, were best because they fit the “maxim that all legitimate power comes from the people” and because they would reduce the chance that “a man can be elected to the nation’s first office by a minority.” of the voices of the people.”
This concern for democracy (or “people’s government”) was a big part of the pleas for reform. For New Jersey Senator Mahlon Dickerson, allowing lawmakers to elect voters without giving voters a say was “the worst possible system” because it “increased” people’s power and diverged from “the spirit, if not of the letter of the constitution”.
Even at this early point in our nation’s history, many Americans believed in democratic participation and sought to make the Republic’s institutions more receptive to the voice of the people. A supporter of district elections, representative James Strudwick Smith from North Carolina, formulated it simply: “You will bring the elections closer to the people, and consequently you will let them attach more value to the elective franchise, which is of the greatest importance in a republican form of government.”
There is a somewhat general view that the counter-Majoritism of the American system is acceptable because the United States is a ‘republic, not democracy’. That idea is behind the idea of the “independent state legislature”, which would allow partisans to limit the right of the people to choose their leaders in a direct and democratic way.
But from the start, Americans have rejected the idea that their system is somehow against more and greater democracy. When institutions appeared to undermine democratic practice, voters and their representatives withdrew, demanding a government more responsive to their interests, aspirations and Republican aspirations. It’s not for nothing that the men who claimed Jefferson as their political and ideological ancestor called their party “Democracy.”
As Americans recognized then, and as they should recognize now, the Constitution is not a charter for states or state legislators, it is a charter for people, for our rights, and for our right to self-government.