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As Georgia run-off wraps, Supreme Court considers who wields America's election power

The Canadian Press 2022-12-07
© Provided by The Canadian Press

WASHINGTON — 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 gathered Wednesday outside the U.S. Supreme Court as North Carolina Republicans sought 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."

No one in the history of the U.S. Constitution has ever tried to make that case, said Neal Katyal, the lawyer for the grassroots pro-democracy group Common Cause, which is fighting the challenge. 

Endorsing it would open a "Pandora's box" that would be very difficult to close, he added.

"The blast radius from their theory would sow elections chaos, forcing a confusing two-track system with one set of rules for federal elections and another for state," Katyal told the justices.

"Case after case would wind up in this court with a political party on either side of the 'V' that will put this court in a difficult position instead of leaving it to the 50 states."

The high-stakes arguments come after the final battle of the 2022 midterms, a run-off 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 run-off were Black: incumbent Democrat Sen. Raphael Warnock and Republican challenger Herschel Walker, the former football star and friend to ex-president Donald Trump. 

Warnock eked out a three-point victory late Tuesday, giving Democrats a slim but critical 51-49 majority in the Senate and capping a rare midterm season where the party in the White House was able to mitigate the damage.

Walker conceded defeat late Tuesday and said he would make no excuses for the loss. 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 last month's results.

Defeated Republican gubernatorial hopeful Kari Lake has vowed 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.

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.

He 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. 

This report by The Canadian Press was first published Dec. 7, 2022.

James McCarten, The Canadian Press

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