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A recipe for despotism: How the far-right is already planning to steal the next presidential election

The latest Republican plot to sabotage our elections could remove American voters from the process of selecting their president.

A case headed to the Supreme Court could let Republican controlled state legislatures overrule the will of the people and pick the next president without you.

This all hinges on a radical idea called the “independent state legislature theory.” It’s at the heart of a case the Supreme Court will decide called Moore v. Harper.

The decision in this case could give state legislatures the power to disregard the popular vote and substitute their own slate of electors pledged to whomever they wish.

We have already had a preview of what this could mean for our democracy. The independent state legislature theory underpinned a major legal strategy in Trump’s attempted coup.

Trump: “Just look at one thing: The legislatures of the states did not approve all the things that were done for those elections. Under the constitution of the United States they have to do that.”

Trump was wrong, of course, but the current Supreme Court could make him right.

In February 2022, the North Carolina Supreme Court blocked the state’s Republican controlled general assembly from instituting a newly drawn congressional district map, holding that the map violated the state constitutional ban on partisan gerrymandering.

The Republican Speaker of the North Carolina House appealed the decision to the U.S. Supreme Court, advancing the independent state legislature theory — a theory that is circulated for years in right-wing circles, which argues that the U.S. Constitution gives state legislatures alone the power to regulate federal elections in their states.

The Constitution does grant state legislatures the authority to prescribe “the Times, Places and Manner of holding Elections for Senators and Representatives”

But the U.S. Constitution does not give state legislatures total power over our democracy. In fact, for the last century, the Supreme Court has repeatedly rejected the independent state legislature theory.

Yet if we know anything about the conservative majority that now controls the Supreme Court, it is that they will rule on just about anything that suits the far-right’s agenda.

The independent state legislature theory would also make it easier for states to pull all sorts of election trickery — like pass even more voter suppression laws, enact even more radically gerrymandered maps, and eliminate the power of election commissions and secretaries of state to make decisions. It was bad enough without the full protections of the Voting Rights Act. The last thing we need is for voter suppression to be made even easier for extremist state legislatures.

If the Supreme Court adopts the independent state legislature theory, it would not just be throwing out a century of its own precedent. It would be rejecting the lessons that inspired the Framers to write the Constitution in the first place – that it is dangerous to give state legislatures unchecked power.

But the Republican Party and the conservative majority on the Supreme Court do not really care what the Framers thought — no matter their rhetoric. They care even less about what you think.

It is a recipe for despotism. But we can fight back.

First, expand the Supreme Court to add balance to a branch of government that has been stolen by radicalized Republicans. This is not a far-fetched idea. The Constitution does not specify how many justices there should be — and we have already changed the size of the Court seven times in American history.

Second, impose term limits on Supreme Court justices, and have them rotate with judges on the U.S. courts of appeals.

Third, Congress must restore federal voting rights protections and expand access to the ballot box. We need national minimum standards for voting in our democracy.

But these congressional reforms can only happen if Democrats retain control of the House in the midterm elections and add at least two more senators willing to reform or abolish the filibuster.

Your vote is important, and not just in federal elections. Make sure you also vote for state legislators who understand what is at stake and will preserve our democracy.

Because, as this Supreme Court case shows, the future of our democracy is not guaranteed.

Robert Reich

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Originally published on Robertreich.org

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About The Author

Robert Reich

Formerly the U.S. Secretary of Labor, Robert Reich is professor of public policy at the University of California at Berkeley and the author of Saving Capitalism: For the Many, Not the FewThe Common Good, and The System: Who Rigged It, How We Fix It