If "Elections Don't Matter," Why is the Supreme Court Preparing to Nullify the Popular Vote?
SCOTUS is on the precipice of throwing the 2024 presidential election to republican state legislatures, the popular vote be damned.
The radical six-member majority on the United States Supreme Court (SCOTUS) has lately been demonstrating what it means to “deconstruct the administrative state.”
And it seems each draconian ruling is worse than the one preceding it.
Over the past several weeks, it has blown a hole in the sacrosanct separation of church and state by decreeing the state of Maine is obligated to fund religious education.
It contravened 50 years of "settled law" when it overturned Roe vs. Wade, for the first time in history revoking rights instead of granting them.
Last week, they demonstrated their medieval fealty to corporate donors by decreeing that government agencies, like the Environmental Protection Agency (EPA) specifically, cannot pass regulations pertaining to "major questions" if Congress does not pass legislation authorizing each individual regulation.
Now they are on the precipice of throwing the 2024 presidential election to republican state legislatures, the popular vote be damned.
On the last day of its term, the Court agreed to take up next session the so-called "Independent State Legislature Doctrine," originating in 2000 after the contested election between George W. Bush and then-Vice President Al Gore.
In an opinion Chief Justice William Rehnquist authored, and signed by former Justice Antonin Scalia and current Justice Clarence Thomas, the Court argued in 2000 that since Article II of the Constitution says states appoint electors "in such Manner as the Legislature thereof may direct," a federal court is legally permitted to reverse a state court's decision regarding state election law if the state court decides against the state legislature.
The argument is over whether the U.S. Constitution grants state legislatures near-absolute power pertaining to federal election laws, including district maps regardless of state constitutions’ language against abuses.
This all started earlier this year with a North Carolina state court ruling that decided against a blatantly right-leaning gerrymandered congressional map that was ordered to be replaced with a less-partisan one.
The SCOTUS agreed to hear North Carolina republicans’ appeal of that ruling.
Sounds pretty mundane, doesn’t it?
Here’s progressive talk show host and author Thom Hartmann laying out a nightmare scenario:
“It’s November, 2024, and the presidential race between Biden and DeSantis has been tabulated by the states and called by the networks. Biden won 84,355,740 votes to DeSantis’ 77,366,412, clearly carrying the popular vote.
“But the popular vote isn’t enough: George W. Bush lost to Al Gore by a half-million votes and Donald Trump lost to Hillary Clinton by 3 million votes but both ended up in the White House. What matters is the Electoral College vote, and that looks good for Biden, too.
“As CNN is reporting, the outcome is a virtual clone of the 2020 election: Biden carries the same states he did that year and DeSantis gets all the Trump states. It’s 306 to 232 in the Electoral College, a 74-vote Electoral College lead for Biden, at least as calculated by CNN and the rest of the media. Biden is heading to the White House for another 4 years.
“Until the announcement comes out of Georgia. Although Biden won the popular vote in Georgia, their legislature decided it can overrule the popular vote and just awarded the state’s 16 electoral votes to DeSantis instead of Biden.
“An hour later we hear from five other states with Republican-controlled legislatures where Biden won the majority of the vote, just like he had in 2020: North Carolina (15 electoral votes), Wisconsin (10), Michigan (16), Pennsylvania (20) and Arizona (11).
“Each has followed Georgia’s lead and their legislatures have awarded their Electoral College votes—even though Biden won the popular vote in each state—to DeSantis.
“Thus, a total of 88 Electoral College votes from those six states move from Biden to DeSantis, who’s declared the winner and will be sworn in on January 20, 2025.
“Wolf Blitzer announces that DeSantis has won the election, and millions of people pour into the streets to protest. They’re met with a hail of bullets as Republican-affiliated militias have been rehearsing for this exact moment.
“Just as happened when Pinochet’s militias shot into crowds as he took over Chile, Mussolini’s volunteer militia the Blackshirts killed civilians as he took over Italy, and Hitler’s volunteer Brownshirts did the same in Germany, their allies among the police refuse to intervene.
“After a few thousand people lay dead in the streets of two dozen cities, the police begin to round up the surviving ‘instigators,’ who are charged with seditious conspiracy for resisting the Republican legislatures of their states.
“After he’s sworn in on January 20th, President DeSantis points to the ongoing demonstrations, declares a permanent state of emergency, and suspends future elections, just as Trump had repeatedly told the world he planned for 2020.”
Robert Barnes reported in The Washington Post:
“The Supreme Court on Thursday said it will consider what would be a radical change in the way federal elections are conducted, giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats.”
Some could reasonably argue the Electoral Count Act of 1887, which requires each state’s governor certify the Electoral College vote before submitting it Congress, prevents this scenario from playing out.
But which language does one follow, the Constitution’s or the Electoral Count Act’s?
If the SCOTUS decides it’s the language in the Constitution—which it’s likely to do— the Electoral Count Act, state constitutions, state laws, and citizens’ votes are now at the mercy of partisan state legislatures—most of which are republican-led.
That means Michigan, North Carolina, Wisconsin, and Pennsylvania’s Democratic governors’ refusal to sign off on the Electoral College votes becomes meaningless.
Language in their states’ constitutions pertaining to protecting free and fair elections become meaningless.
Republican-led legislatures are already amending their state laws to guarantee this.
And we’ve already gotten a glimpse of what the bought-off right-wing majority on the high court thinks.
According to a recent piece in Salon:
“In a Wisconsin ‘shadow docket’ case that was vacated by the full court, Justice Brett Kavanaugh weirdly inserted an irrelevant footnote referencing Rehnquist's idea saying that ‘the text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.’ A few days later Justices Samuel Alito, Neil Gorsuch and Clarence Thomas filed a statement in a case in Pennsylvania suggesting that they also believe the Court must reverse a state supreme court that ‘squarely alters’ election law enacted by a state legislature. So that makes four justices who have at least hinted that they are sympathetic to the idea that they are empowered to overrule state courts if they follow their own state constitutions in voting rights and procedures. In fact, it appears that all four are willing to overrule all state actors in favor of the legislature which they deem to be the only authority over election laws.”
The next piece of democracy we need to be prepared to be carved up—the first amendment.
Last week the SCOTUS decided not to hear Coral Ridge Ministries Media’s lawsuit against the Southern Poverty Law Center (SPLC) for libel after the SPLC labeled Coral Ridge Ministries a hate group.
Justice Clarence Thomas warned us SCOTUS’s draconian pronouncements are far from finished.
He stated about the Coral Ridge Ministries vs. SPLC case:
“This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”
The New York Times?
What does that have to do with the SPLC?
As the nation’s “highest” court has elevated the Second Amendment, be ready for its assault on the First.