THEY WON'T NEED A MOB IN 2024

There is a good chance, if the Six Injustices of the Supreme Court do in their next term what they have demonstrated themselves entirely capable of doing this paSt term - taking a sledgehammer to 240 years of constitutional precedent in the name of recreating the United States as the Republic of Gilead - that Trump and the MAGA movement won’t need a mob to put them in power to accomplish the goal of creating a christo-fascist theocratic dictatorship in 2024. They’re going to get a Mulligan on what they tried in 2020, with the court handing them the key to victory.

At the end of the last term, the Six Injustices announced they would hear arguments next term in Moore v. Harper, a challenge to North Carolina’s new congressional map.

If they decide this in the terms of “originalism” they have now invented, the case will be the basis for rejecting popular democracy in choosing officeholders. It will enshrine the idea floated by the Conspirators of 2020 that state legislatures alone have the power to determine the outcome of elections.

The facts of the case are:

1. North Carolina Republicans proposed a gerrymander so egregious that the state Supreme Court ruled that it violated the state’s Constitution.

2. Republicans sought to restore the legislative map, citing the “independent state legislature doctrine,” which asserts that state legislatures have almost absolute power to set their own rules for federal elections.

3. Once passed into law, then, those rules cannot be overturned — or even reviewed — by state courts.

How dangerous is this? A Republican victory at the Supreme Court would, according to election law expert Rick Hasen, “radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. It could essentially neuter the ability of state courts to protect voters under provisions of state constitutions against infringement of their rights.”

The Supreme Court will decide in this case if the “independent state legislature doctrine,” which has been to date an outlier proposed by radical legal reactionaries as the way to overcome the messiness of popular democracy, shall control further elections.

This radical interpretation of the Elections Clause of the Constitution is also claimed by its proponents to extend to the Presidential Electors Clause. Under this interpretation, state legislatures could allocate Electoral College votes in any way they see fit, at any point in the process. This could allow Republican-led state leiglatures to pass laws allowing them to send alternative slates of electors, overruling the will of the voters. They could do legally what Donald Trump and his conspirators pressured Republicans in Arizona and Georgia to do illegally in 2020.

There are many problems with this doctrine beyond the outcomes it was engineered to produce. Some are logical — the theory seems to suggest that state legislatures are somehow separate and apart from state constitutions — and some are historical. If the “historians” on the court want to search for “rights” that have a long history of being well-rooted in American politics and society, they will see clearly that throughout the country’s history, Americans have never wanted to entrust their state legislatures with the kind of sweeping electoral powers this theory would create. This would be a radical overthrow of both the Constitution and political history, creating something new - the direct opposite of “originalism.”

Historically, there was no uniform method for the allocation of electors during most of the first 50 years in which presidential elections. The election of 1800 was the first truly competitive race for president. In it, two states used a winner-take-all system where voters cast ballots to pick their electors directly (as we do now), three states used a system where electors were chosen on a district-by-district basis, ten states used a system where the legislature chose the electors, and one state, Tennessee, used a combination of methods.

The method of choosing electors changed from election to election, depending on partisan advantage. Virginia, which had used the district system in the election of 1796, adopted the winner-take-all “general ticket” in 1800 to provide total support for Thomas Jefferson in the race against John Adams. Adams’s home state of Massachusetts retaliated by abandoning district elections for choice by the legislature, to ensure that he won all the electors.

Manipulation of this sort went on until the mid-1830s, when every state except South Carolina adopted the winner-take-all “general ticket” that has been used ever since. South Carolina adopted this system after the Civil War.

However, it can clearly be seen by any researcher other than Samuel Alito, that starting in 1812, the public and elected officials turned against such use of the state legislature to choose presidential electors.

At the time, while Jefferson’s Democratic-Republican Party was still in power, James Madison was president. He, and the war he was fighting, were unpopular. While a majority of Congress had supported Madison’s call earlier that year for a declaration of war against Britain, the vote was partisan, with Republicans in favor and all Federalists opposed.

The reasons for war were outwardly straightforward: there was popular indignation over the impressment of seamen in American ships by the Royal Navy, with a claim that those taken were “British subjects” regardless of whether they had become American citizens. As Madison put it, these acts “present a series of acts hostile to the United States as an independent and neutral nation,” in which “thousands of American citizens, under the safeguard of public law and of their national flag, have been torn from their country.”

There was, however, more to the American desire for war with Britain than protecting the rights of sailors against impressment into the Royal Navy. In fighting Britain, the administration and the western state “War Hawks” in congress also hoped to conquer Canada and end British influence in the parts of North America where the British were allied with Native tribes to harass American settlers and stymie westward expansion.

It didn’t take long once war had been declared for those dreams to smash into reality. Outside of a limited number of naval victories, untrained and inexperienced American militias flailed against British regulars with ringing defeats in every engagement. As the summer wore on, bringing the next presidential election that November closer and closer, Madison faced defeat in war and domestic political division. Federalists in New England used their hold on local and state offices to obstruct the war effort and were actively campaigning for secession from the United States.

Fearing defeat in the presidential race, the Democratic Republicans did everything they could to secure Madison’s victory while the Federalists aimed for his defeat with similar efforts.

North Carolina had utilized the district system since 1796. That summer of 1812, the state legislature announced it would choose electors, since its majority feared Madison might lose to New Yorker DeWitt Clinton, who was running with the support of Federalists and dissident Republicans.

The Federalist-controlled New Jersey legislature announced in late October, days before the election, that the scheduled election was cancelled and it would appoint its own electors. The Commonwealth of Massachusetts, with legislative power divided between the Republican-led senate and Federalist-led lower house could not agree on how to choose electors, forcing the governor to convene an extra legislative session to save the state from losing its electoral votes altogether.

While Madison was re-elected, the actions by both sides to manipulate the outcome resulted in “firestorms of protest and recrimination.” In the years following, known as the Era of Good Feelings after disaster was averted in the war and James Monroe followed Madison into the White House as the last of the Founders to be president, congressional lawmakers in both House and Senate attempted to amend the Constitution to end legislative selection of electors and mandate district-based elections for the Electoral College. Their argument was that district elections, as one congressman put it, were best because they fit the “maxim that all legitimate power is derived from the people” and because they reduced the chance that “a man may be elected to the first office of the nation by a minority of votes of the people.” (Hmmmm... perhaps we should have listened?)

The concern for “popular government” was a major element in the case for reform. Senator Mahlon Dickerson of New Jersey wrote that allowing legislators to choose electors without there being a popular vote was “the worst possible system” as it “usurped” power from the people and departed from “the spirit if not from the letter of the Constitution.” Representative James Strudwick Smith of North Carolina, wrote: “You will bring the election near to the people, and, consequently you will make them place more value on the elective franchise, which is all-important in a republican form of Government.”

Even at this early point, when the American system was still very far from open and inclusive there was widespread belief in democratic participation and effort was made to ensure the institutions of the Republic were more receptive to the voice of the people.

The other side of the argument, in favor of the counter-majoritarianism written into the American system, says that the anti-democratic principles of the Founders are acceptable because the United States is a “Republic, not a democracy,” an argument I have heard those on the American Right use repeatedly in all the years since I became aware of American politics. That is at the heart of the theory of the “independent state legislature,” which would limit the right of the people to choose their leaders in a direct and democratic manner. As the election of 1812 demonstrated, this would result in partisan attempts to rig the outcome, which its supporters claim it would end.

For those who want to “study history” to determine what should be the system by which we elect representatives, it is clear that since 1796, Americans have rejected the idea their system is opposed to more and greater democracy - every political action taken has been to support the expansion of democracy. It is not a coincidence that the men who claimed Jefferson as their political and ideological leader labeled their party “The Democracy.”

Americans have known since 1796 that the Constitution is not a charter for states or state legislatures. It is a charter for people, for our rights and for our right to self-government.

Defending our rights and the right of self-government is, however, not the goal of the Six Injustices. Their goal is the imposition of the christo-fascist theocratic Republic of Gilead.

But if they want to actually study American history, they will discover they are on the Wrong Side.

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