SCOTUS Rules That Elections Have Consequences

by Michael Liss

In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy.

–Justice Samuel Alito

Elections have consequences. Sometimes those consequences may be unintended, but they are always there. Elections have consequences. You can’t say it too many times because too many voters don’t act if they believe it. They should. Elections have consequences.

The rule was ignored by President Obama and Democrats in 2014, which led to a disastrous Midterm that flipped control of the Senate to Mitch McConnell and his band of Merrick Garland stonewallers.

It was ignored when too many Republican POTUS hopefuls crammed into the 2016 primary, giving Donald Trump an opportunity to run one of the most brilliant games of political snooker ever, putting to death their personal ambitions one by one, and capturing an entire political party.

It was ignored when too many Democrats wrung their hands over the highly qualified but easily disliked Hillary Clinton and just couldn’t bring themselves to get to the polls because, well, how bad could Trump be, he’s a businessman, and Hillary Clinton is…Hillary Clinton.

It was ignored by Trump and Republicans in 2018, when Trumpian overreach and bombast led to the Democrats’ winning 40 seats and taking back the House, with enough cushion to leave control of the future January 6 Committee in the hands of Nancy Pelosi.

It was ignored by Trump a second time (although he likely didn’t care) when his blistering approach to his loss in Georgia helped Raphael Warnock and Jon Ossoff become Senators Raphael Warnock and Jon Ossoff, giving working control of the Senate back to the Democrats.

And, if my tea-leaf reading is right, it’s being ignored again now by Democrats’ squabbling over Biden’s consummately Non-Goldilocks presidency, so as to leave the field open for the wildest, most disruptive, most conspiracy-loving and election-denying band of GOP candidates ever to potentially seize control of both Houses of Congress and most of the rest of the Non-Red-State governments. Say goodbye to the January 6th Committee and hello to Jim Jordan and his mass subpoena machine. Bid adieu to State officials of character with any control over the election process and a hearty howdy to a group that believes that a vote for any Democrat is, by definition, fraud.

Elections have consequences. But nowhere in the last eight years of ugly chaos has the rule demonstrated more long-term practical meaning than in the impact that Donald Trump has had on the Federal Judiciary, and most critically, the Supreme Court.

Coups may come, and go, and come again, but, on a policy level, that strange animal that now shows itself as Trumpian Conservo-Republicanism has been chained to the deck of the Ship of State by Justices Gorsuch, Kavanagh, and Barrett, with the gleeful assistance of Justices Alito and Thomas.

I’m not going to go through the disastrous SCOTUS term case by case. We all know about Whole Woman’s Health v. Jackson, and SCOTUS’s execrable thumbs up to rifling through your neighbor’s garbage to do some faith-based bounty hunting. And Dobbs, and the Court’s torpedoing of a half-century-old precedent, so as to bless chasing 10-year-old rape victims and the healthcare professionals that assist them. And Bruen, the practical end of New York’s 100+ year-old concealed carry legislation. And West Virginia v. EPA, which used an entirely synthetic legal standard as an excuse to effectively nuke a provision of the Clean Air Act. And the Maine school-funding case, Carson v. Makin, in which the Court erased the line between Church and State (and repealed the 1971 “Lemon Test”), and Kennedy v. Bremmerton School District (the coach praying on the 50-yard-line case), with its relentless pursuit to rewrite the Establishment Clause to, well, “Establish” something.

What is curious about all those decisions is, for all the rigor the conservatives claim they are bringing back to SCOTUS, how loose they are with legal reasoning and how “convenient” their historical references are.

You would think that, after a half century of complaining about Roe v. Wade’s awkward framework, they could do a little better than Justice Alito’s extended rant in Dobbs. You would be wrong. Alito’s venom is coupled with a demand that, to recognize any “new” right not expressly set forth in the Constitution, it “be deeply rooted in this Nation’s history and tradition.” OK, that’s a doctrine, of sorts, but it would be far more persuasive if he got the history right. It is just not true that abortions were never allowed, but Alito simply “memory-holes” the historical evidence of its being permitted “pre-quickening.”

So, too, goes Justice Thomas’s strained defense of a virtually unlimited right to guns. Not only does he skip past every precedent in the last hundred years, but he reaches back several centuries, effectively to equate possession of a halberd or a trebuchet to a semi-automatic weapon, while ignoring every “leave your guns on the hitching post outside the saloon” ordinance since then.

Over and over, the conservative Justices dip into a seemingly bottomless well of convenient memory and innovative theory in order to achieve outcomes. I’m not, for example, asking Justice Thomas to spend time in the Arms and Armor section of the Metropolitan Museum of Art, but when Justice Gorsuch insisted that Coach Kennedy was engaging in a short and private prayer, he was ignoring photographs of Kennedy at the 50 surrounded by dozens of players. Can’t get more private than that.

As to being textualists, devoted to the reasoning of the Framers, this group also can be a tad situational. Take the “Major Questions Doctrine” they used in West Virginia v. EPA to block a policy with which they didn’t personally agree. Doesn’t Congress have the right to delegate regulatory authority to an agency populated by policy wonks who have a more in-depth understanding of the field? That’s certainly the way it’s been done in the past, and previous Supreme Courts have agreed that considerable deference is called for. Not this Court. It doesn’t do deferential when it doesn’t like a specific policy. Out comes the Major Questions Doctrine (capital letters show gravitas), which empowers them to demand far more granularity from Congress when the (political) need arises.

So, where might one find the Major Questions Doctrine? The Constitution? Nope. Federalist Papers? Uh-uh. Perhaps the writings of William Howard Taft or Charles Evans Hughes? Not them, either. The “Doctrine” has been around (as a theory) for less than 30 years, and seems to be applicable only when a Democrat is President.

You look at the EPA case, at how the conservatives on SCOTUS have handled Biden’s reversal of Trump’s “Stay in Mexico” policy, and at their selective intervention on vaccine mandates, and what you see from this group is an extraordinary power grab fueled by an ideological and often nakedly partisan agenda, situationally applying standards to attain desired outcomes. Whatever you may think of Original Intent, the Founders did not and would not have approved of this. Judges are given lifetime appointments so they can be beyond politics, not so they can participate in it with impunity.

This should be obvious to everyone. Judges, even those on SCOTUS, are there to determine the constitutionality of certain laws and policies and not the wisdom of them. The latter is for the voters to decide, and they are fully capable of expressing displeasure (see Glenn Youngkin’s election in Virginia).

Accountability is an essential part of our system: Elections have consequences, and they ought to. No elected official is entitled to his or her office; no one is above criticism. The voters choose. Until they don’t, and that leads us to what may be the most impactful case to come before SCOTUS, the potential Death Star for Democracy, Moore v. Harper.

The case, which will be briefed and argued next Term and decided in 2023, in ample time for the “winners” to act on it before the 2024 Election, has already been the subject of a great deal of coverage. I’ll cut out some of the steps to make it a little easier to digest.

Moore is a challenge by North Carolina’s Republican-controlled General Assembly to a North Carolina court decision that invalidated the General Assembly’s highly gerrymandered Congressional map and replaced it with one drawn by court-appointed special masters. In coming to its conclusions, the North Carolina Supreme Court relied, in part, on the state constitution, and, in a rather ironic twist, the express language of the original North Carolina redistricting law. That statute empowers a three-judge panel in Wake County and then the state Supreme Court to hear challenges to the General Assembly’s reapportionments or redistricting of both state legislative districts and Congressional Districts. It does so with some specificity as to the standards the state Supreme Court should apply.

The GOP first approached SCOTUS on the so-called “Shadow Docket” for a stay, but were turned aside when Justice Kavanaugh joined with the liberals and Justice Roberts. Without opining on the merits of the case, Kavanaugh thought it was untimely. Nevertheless, even though the stay was denied then, SCOTUS granted certiorari on the full issue four months later.

The basis of the Republican claim was that, notwithstanding the statute, the actions of the North Carolina Supreme Court should be set aside because of something called the Independent State Legislature Doctrine. The ISL, in its more extreme form, would vitiate all provisions of the state constitution that try to guarantee free and fair federal elections and/or reduce potential gerrymandering. It would also strip away the authority of the state courts and the Governor to play any role in reviewing federal-election-related legislation. The state legislature would have sole authority.
Proponents of the ISL claim it stems from Article I Section 4 of the Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”

Unfortunately for them, past Supreme Courts (going back over a century) have not agreed. Even as recently as 2019, Justice Roberts, writing the controversial Rucho decision blessing partisan gerrymandering, expressly noted that, while it was beyond federal purview, “[p]rovisions from state statutes and state constitutions can provide standards and guidance for state courts to apply.”

But that was 2019, which, in Thomas/Alito time, was as distant as the era of halberds and trebuchets. It was also before the 2020 election and its immediate aftermath, where, at the urging of Trump, over 60 challenges were made to the election results, searching for a theory that would permit the setting aside of sufficient numbers of votes to flip the result. SCOTUS at that time was not (at least yet) ready to jump into those cases to award Trump the win, but Alito, joined by Thomas and Gorsuch, expressed interest in the ISL.

Let’s move forward to North Carolina, where, in his dissent to SCOTUS’s original “Shadow Docket” refusal to grant the GOP the relief it sought, Alito went further than saying he would have heard the case. He was ready to immediately reinstate the Republicans’ North Carolina map. Being the good textualist he is, the actual language of the North Carolina law specifically including state court oversight would be overridden by…a theory that has never previously been adopted.

Where are we? With three Justices clearly on board with the idea that state laws, state constitutions, state Governors, and state courts have no place in reviewing how the state legislatures manage Congressional elections. Plus Justice Kavanaugh, who expressed interest in the ISL (while not being willing to grant immediate relief) in the original Shadow Docket ruling. That is (potentially) four, leaving Justice Barrett, who is a Sphinx at this point.

Many commentators who have sounded the alarm on this have been focused on the 2024 Presidential election with the possibility of GOP-dominated State Legislators in swing states simply flipping Electoral Votes, either through the ISL (noting that Article II of the Constitution has similar, although not identical language regarding Presidential elections) or the Electoral Count Act. That is certainly a present danger, given Trump’s continuing demands, but let me be an optimist and suggest there may be only three votes on SCOTUS to support a system-ending result like that.

Instead, let’s look at a more prosaic approach that fits with the trends since the 2020 election was decided. Five Justices bless an expansive view of the ISL, and all the voter suppression by state legislatures instantly is beyond any in-state review. Full speed ahead for the 18 GOP-controlled states that have already adopted more than 100 new criminal penalties for actions previously considered legal (like giving Granny a bottle of water as she stands in line on Election Day) and a green light for more.

The possibilities are endless, because the ISL is a license to cheat. Election police, partisans appointed to boards with the authority to toss ballots, armed poll-watchers, last-minute switches of polling sites, inoperative polling machines on Election Day with state courts powerless to extend hours. Or just a simple limitation on the number of ballot boxes or polling places per county. Imagine an ultra-partisan state legislature like Wisconsin’s mandating a standard of 10 polling places per county. Wisconsin has 72 counties. 20 of them have populations of under 20,000. Two, Milwaukee and Dane, have 1.5 million between them. Using 2020 Presidential votes as a proxy, Biden carried Milwaukee and Dane by an aggregate of about 360,000 votes. He won the state by barely 20,000. Keeping just one in 18 Biden voters from getting to the polls in those two counties, because they were too crowded, doesn’t seem all that hard when there’s no one to say no.

Well, not no one. An aggrieved party can always take his or her case to the Supreme Court. The tender mercies of Justice Alito await.

I think you’ve had enough for one reading. As I said at the beginning, elections have consequences. Until, one day, when the voters find that the game is so fixed that voting is of no consequence at all.  That will be the day when many of us learn what liberties we still enjoy.