Last week, the Supreme Court announced it would hear arguments in Moore v. Harper, a challenge to North Carolina’s new congressional map.
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 the suffrage expert Rick Hasen“Radically changing the power of state courts to rein in state legislators who violate voting rights in federal elections. It could essentially neutralize the ability of state courts to protect voters under provisions of state constitutions from violations of their rights.”
This radical interpretation of the constitution’s election clause extends to the presidential election clause, so that during a presidential election year, state legislators can allocate electoral college votes in any way they see fit, at any point in the process. as I argued Earlier this year, we could see Republican-led states 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 Republicans into. Arizona and Georgia to do illegally. According to the doctrine of the independent state legislature, the next time Trump tries to undo the results of a lost election, Trump doesn’t need a crowd.
There are many problems with this doctrine that go beyond the results for which it was designed. Some make sense — the theory seems to suggest that state legislatures are somehow separate and unrelated to state constitutions — 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. based on that, 10 states used a system where the legislature simply chose the 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’s home state of Massachusetts has abandoned the district election for legislative selection to ensure he gets all of his voters.
This kind of manipulation continued until the mid-1830s, when every state except South Carolina took the “general ticket.” (South Carolina wouldn’t allow voters to directly elect voters until after the Civil War.)
From 1812, however, you can begin to see the public and its elected officials turn against this use of the state’s legislature.
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 ‘behaviour of her government,’ said Madison in his message to Congress requesting a declaration of war, “presents a series of acts hostile to the United States as an independent and neutral nation.” Those acts included impressing American sailors (“thousands of American citizens, under the protection of public law and of their national flag, have been ripped out of their land”) and attacking American trade (“British cruisers are in practice also from violating the rights and the peace of our shores.”).
In the fight against Britain, the government and its allies hoped to pressure the crown into reaching a more favorable settlement 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.
However, those hopes dashed into reality when an untrained and inexperienced American militia attacked the British regulars. And as the summer wore on, drawing him ever closer to the next presidential election, Madison faced defeat abroad and division at home. 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“Federalists tried to end loud demonstrations by army recruits 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. The historian Alexander Keyssar describes these shenanigans in the book “Why do we still have the electoral college?He notes that,
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 Republican-led Senate and Federalist-led lower house couldn’t agree on a method for electing voters. “Eventually,” Keyssar notes, “an additional legislative assembly had to be convened to prevent the state from losing its electoral votes altogether.”
Madison was re-elected, but according to Keyssar, both sides’ attempt to manipulate the outcome caused “firestorms of protest and recrimination.” A number of lawmakers in the immediate aftermath and in the years that followed would try 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 large 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 of North Carolina, put it simply: “You will bring the election closer to the people, and consequently you will make them value the elective franchise more, which is paramount in a republican form of government.”
There is a somewhat general view that the counter-majoritarianism of the American system is acceptable because the United States is a “republic, not a democracy.” That idea lies 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 “The 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.