Another day, another interesting intersection for modern American democracy – this one between the 2022 campaign trail, the perennial search for election integrity, and the road to the highest court in the United States.
Protesters plan to gather outside the U.S. Supreme Court Wednesday as North Carolina Republicans seek to persuade the high court of the near-absolute power they believe state legislatures have to regulate federal elections.
Conservative lawmakers hope to strike down a North Carolina Supreme Court ruling that used the state constitution as the basis to reject a congressional map for the 2022 midterms that overwhelmingly favoured Republicans.
That the right-leaning Supreme Court is willing to entertain what’s known as the “independent state legislature” theory says a lot about the current political moment, said Duke University professor Asher Hildebrand.
“This radical theory has no basis in history, no basis in legal precedent and no basis in common sense,” said Hildebrand, an associate professor at Duke’s Sanford School of Public Policy.
Should the challenge succeed, critics say it would undermine established norms for administering presidential elections, and likely upend state efforts to prevent the sort of partisan gerrymandering at the heart of the North Carolina case.
It could clear the way for more restrictive voting laws, spell the end of ranked ballots and non-partisan primaries and create a national patchwork of rules and regulations that brings with it a parade of court challenges, he said.
And then there’s the biggest fear: “Those who seek to subvert the will of American voters in future elections would view the decision as a green light to take their chances in a permissive legal environment.”
The outcome will be closely watched in several states, including Utah, Ohio, Kentucky and New Mexico, where Democrats and Republicans alike have filed lawsuits to dispute House district maps or challenge lower court rulings that protect them.
“This court should put a stop to the North Carolina judiciary’s usurpation of the General Assembly’s specifically enumerated constitutional authority to regulate the manner of congressional elections,” the applicants write in their Supreme Court brief.
“Anything less will surrender North Carolina’s 2022 elections to a congressional map that palpably violates the U.S. Constitution, rewarding judicial activism of the most brazen kind.”
The high-stakes arguments come after the final battle of the 2022 midterms, a runoff in Georgia made necessary by a 1964 state law originally intended to blunt the growing power of Black voters.
Ironically, both contenders in the Georgia runoff are Black: incumbent Democrat Sen. Raphael Warnock and Republican challenger Herschel Walker, the former football star and friend to ex-president Donald Trump.
With 85 per cent of the ballots counted Tuesday, Warnock was nursing a narrow lead of about 7,000 votes, which if it were to hold would give Democrats a slim 51-49 majority in the Senate.
Of course, in the U.S. these days, elections don’t end just because all the votes have been counted.
Trump has made “election denier” a standard part of the American political lexicon by refusing to accept the results of the 2020 presidential contest – a trend that fuelled delays in Arizona, where it took until Monday for officials to finally certify the results of last month’s midterm elections.
Defeated Republican gubernatorial hopeful Kari Lake has promised to fight those results all the way to the Supreme Court, where some fear the 6-3 conservative majority makes the justices more receptive to such challenges.
Walker refused to answer questions Tuesday about whether he would concede a loss.
Even if the former president were to change his ways, the post-campaign denial tactic wouldn’t go away any time soon, said Matthew Lebo, a political science professor at Western University in London, Ont.
“It might go down a little bit, but he didn’t invent it,” Lebo said.
“If Trump were to sail into the sunset tomorrow, you’d still have Kari Lake and a lot of crazies in the House and the Senate, and a lot of governors who deny elections.”
Trump went even further Saturday than he typically does, using his Truth Social platform to call for “the termination of all rules, regulations and articles, even those found in the constitution” in order to get his old job back.
That has been making it difficult – but not impossible – for prominent Republicans on Capitol Hill to avoid denouncing the former and would-be future presidential hopeful.
“Anyone seeking the presidency who thinks that the constitution could somehow be suspended or not followed, it seems to me, would have a very hard time being sworn in as president of the United States,” said Senate Minority Leader Mitch McConnell.
McConnell stopped short of saying he would not support Trump if he became the Republican nominee.
McConnell was on hand Tuesday for another stark reminder of the fragility of the American experiment, this one a stirring congressional gold medal ceremony for police officers who confronted rioters on Jan. 6, 2021.
Relatives of Capitol Police officer Brian Sicknick, who died from injuries he sustained in the riot, refused to shake hands with McConnell and House Minority Leader Kevin McCarthy.
Family members later said they remain angry over the failure of senior Republicans to aggressively denounce Trump’s steadfast refusal to accept the results of the 2020 election.
“We admire and respect them,” McConnell said when asked about the snub. “They laid their lives on the line. And that’s why we gave a gold medal today to the heroes of Jan. 6.”