How Congress Can Preempt the Most Dangerous Possible Ruling of the Next Supreme Court Term
In a one-line order last week, the Supreme Court planted a ticking time bomb that now threatens American democracy. The court agreed to hear a case in which North Carolina legislative leaders argue that state legislatures should be free to regulate congressional elections without any constraints from other state actors. If adopted, this position would revive the Republican gerrymander of North Carolina’s congressional districts, which a state court struck down on state constitutional grounds. In other cases, this position would mean that state legislatures could subvert congressional elections without pushback from governors, state courts, or even state electorates.
Fortunately, Congress doesn’t have to sit back and wait for the court’s next potential blow against democracy. Under the same constitutional provision invoked by North Carolina’s politicians, Congress can indisputably nullify their claim of absolute electoral power—and all others like it. That provision is the Elections Clause of Article I. North Carolina’s politicians fixate on the first half of the clause, which says that “the Legislature” of each state shall regulate the “Times, Places and Manner” of congressional elections. But the clause’s second half authorizes Congress to override any state policies about congressional elections with which it disagrees. “Congress may at any time … make or alter such Regulations.”
To nip the North Carolina case in the bud, then, all Congress has to do is pass a short statute ratifying all state regulations of congressional elections that are compliant with state constitutions. State constitutions commonly give regulatory roles to many non-legislative actors: governors who can veto bills, state courts who can review laws’ constitutionality, bureaucrats who can set certain policies, even voters who can launch initiatives. Under the proposed statute, all these actors’ efforts would be immunized against North Carolina-style challenges. That’s because gubernatorial vetoes, state court decisions, state agency rules, and voter initiatives would all now have the imprimatur of federal law. So if a state legislature objected to any of these actions, the resulting clash would no longer be between that body and another state actor—a battle at least four Supreme Court justices likely think the legislature should win. Instead, the dispute would be between the legislature and federal law, which would plainly trump that body’s preferences.
If Congress wanted to pack more of a punch, it could also try to ratify all state regulations of presidential elections. In that case, the statute would aim to neutralize state legislative complaints about state courts or state agencies making decisions about presidential races. It would also hope to foil state legislative schemes to appoint presidential electors unilaterally, in violation of state law. In other words, the statute would seek to pull the rug from under many of the strategies that Donald Trump deployed after losing the 2020 election. The odds of another coup attempt disguised by a patina of legal argument would thus decline sharply.
https://www.msn.com/en-us/news/politics/how-congress-can-preempt-the-most-dangerous-possible-ruling-of-the-next-supreme-court-term/ar-AAZkupk
That assumes the GOP or the Sine-Manchin doesn't get in the way.
= new reply since forum marked as read
