Is Democracy Constitutional?
Every American child in public school learns that the U.S. political system is one of checks and balances, in which the judicial, executive, and legislative branches constrain one another to ensure that no one branch of government exercises too much power. One pending case before the Supreme Court asks: What if they didn’t?
In Moore v. Harper, North Carolina Republicans are arguing that no other state body, including the state supreme court, has the power to restrict the legislature’s ability to set voting rules—specifically ones allowing legislators to gerrymander the state, in defiance of a ruling by the state supreme court finding that their plan violated the state constitutional amendment guaranteeing the right to vote. This belief is based on a crank legal premise called the “independent-state-legislature theory.”
[Thomas Wolf and Ethan Herenstein: The case that could blow up American election law]
The is that the U.S. Constitution’s text about state legislatures setting election rules refers not simply to passing laws or adopting state-constitutional provisions regarding voting, but to an authority to decide such matters unilaterally. State legislatures, in its most extreme interpretation, this theory would mean that a state legislature could simply overturn federal election results it did not like based on its perception, no matter how unfounded, that the rules were violated. Hypothetically, the Supreme Court could check such abuse of power; its capture by the Republican Party means that, in practice, it might not.
