Will the Supreme Court impose a Republican government on the US?

We often hear about the United States having a “republican form of government.” That comes directly from Article IV, Section 4, of the U.S. Constitution, which emphatically proclaims: “The United States shall guarantee to every State in this Union a Republican Form of Government.”

The ultra-conservative majority of the U.S. Supreme Court seems poised to make a slight variation in that language. That is, to impose a Republican government on the country by allowing state legislatures to set election rules on their own, without any pesky interference by their governors or state courts.

The Supreme Court will hear arguments later this year in Moore v. Harper, a case that presents the question of whether a state legislature, acting completely on its own, can set rules governing federal elections in the state, even rules that are contrary to the state’s laws. The facts are that North Carolina’s Republican-controlled legislature approved a new redistricting plan that was struck down by the state’s Supreme Court earlier this year as an “egregious and intentional partisan gerrymander.” The plan violated the state’s constitution, so that should have been the end of it.

But the controversy, which revolves around a few innocuous words in the U.S. Constitution, has been brewing in rightwing legal circles since three Supreme Court members breathed life into them in the Bush v. Gore decision in 2000. The words in Article I, Section 4, say: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…” The North Carolina Legislature is asking the Court to decide that these words give it the final say over redistricting and, presumably, all other rules for federal elections held in the state. Their idea is called the “independent state legislature theory” (ISLT).

If the Supreme Court agrees with the GOP-controlled legislature, it will be a godsend to the Republican Party in two critical respects. First, it will allow gerrymandered GOP legislatures to self-perpetuate and to approve voting rules that disfavor all other parties. Governors, who are necessarily more politically moderate than gerrymandered legislatures because they must appeal to statewide constituencies, and state supreme court justices, who are either appointed by those governors or face their own statewide elections, would have no ability to counter those actions.

Secondly, Article ll, Section 1, of the Constitution uses similar wording for the appointment of electors to the electoral college, i.e., “Each State shall appoint [Electors], in such manner as the Legislature thereof may direct.” A Court holding in favor of the legislature would provide legitimacy to the type of efforts made by GOP extremists in the 2020 election to present alternate slates of presidential electors. What a gift to Justice Clarence Thomas’s wife, Ginni, who labored so hard to get legislators in at least two states, Arizona and Wisconsin, to submit alternate elector slates to the electoral college favoring President Trump. Justice Thomas has a glaring conflict of interest in this case and must recuse himself, even at the risk of marital discord in his home.

Although a ruling for the legislature would be a major coup for the GOP, it would be a hammer blow to the rule of law in America. The idea that a state legislature, acting on its own, could set important substantive rules for the conduct of federal elections, is a rude affront to the very fabric of our constitutional system of checks and balances.

Those who wrote the Constitution were driven by the idea that governmental power should be divided among the three branches of government – executive, legislative and judicial – so that each branch could act as a check on the power of the others. The legislature passes legislation, which only becomes law with the approval of the executive, and the state courts have the power to rule upon it. It’s as simple as that. The framers of our Constitution would be dumbfounded to think that our high court could even be considering such a rogue scheme as the legislature is peddling.

As many constitutional scholars have pointed out, there is no credible legal or historic basis to support the ISLT. The Conference of Chief Justices, composed of the top judicial officers of the courts of last resort in U.S. states and territories, has weighed in with a brief demolishing the theory and pointing out the serious danger it poses to our federalist system. I have been a member of this group and can attest that it would only take such a step if it considered the threat to state courts to be extreme. The prospect that the Supreme Court could preemptively deprive state high courts of the power to rule upon rogue actions of state legislatures is a preposterous infringement of the 10th Amendment to the U.S. Constitution. The only support for the theory comes from a fraudulent document that the legislature relies upon in its Supreme Court legal brief.

The Republican-appointed Court justices have already performed yeoman service to their party by systematically emasculating the voting rights of folks in the other party. Embracing the ISLT is a bridge too far, given its lack of credible legal, historic or commonsense support.

The Supreme Court should drop this case because of the serious danger it poses to our democratic system. If we are to have a thoroughly Republican government, let it come through a fair contest at the nation’s ballot boxes.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017), including a term as chief justice.