The threat of legal autocracy in the U.S.
Last week, the U.S. Supreme Court heard arguments in a case dealing with obscure theories of constitutional interpretation. However, the case reveals strategies that risk subverting democracy.
Last week, the U.S. Supreme Court heard arguments in Moore v. Harper, a case which – at first glance – deals with obscure disputes about constitutional interpretation. The case presents the problem of the meaning of the word ‘legislature’ within the U.S. Constitution’s Elections Clause and Electors Clause. These clauses are embedded in the context of the Constitution’s guarantee of state republican government; they provide that the state legislatures shall determine the manner of electing representatives to the Congress, and shall appoint electors to vote for the President. The legal question is whether the word ‘legislature’ refers specifically and exclusively to a legislative body, or to the apparatus of state government more generally.
The significance of the interpretation of ‘legislature’ is whether or not the state’s courts may review the actions of state legislatures in managing elections. The established and mainstream understanding of these clauses is that ‘legislature’ refers to the state’s government more broadly, and the state courts may perform ordinary judicial review of legislative decisions. However, a fringe legal theory known as the ‘independent state legislature theory’ maintains that the word ‘legislature’ refers exclusively to the legislative body, and that the Constitution therefore prohibits judicial review of legislative decisions concerning elections. Moore v. Harper is an invitation for the Supreme Court to embrace this theory.
To understand the danger posed by this case, we must first understand the work of political scientists and sociolegal studies scholars in mapping the phenomenon of what Kim Lane Scheppele calls “autocratic legalism.” Scheppele argues that in recent years, authoritarians have successfully used the rule of law to undermine democracy by deploying legalistic constitutionalism against democratic constitutionalism. For example, she describes how in Hungary, Orban’s party was able to use control of “crucial institutions, such as the judiciary, the media, the prosecutor’s office, the tax authority, and the election commission” to ensure that decisions made according to the ordinary constitutional and legal process would always favor the continued rule of Orban’s party – allowing the rule of law to effectively undermine democratic governance in Hungary.
However, as I frequently discuss with my students, what is happening in Hungary is not new. In fact, it was the way that the United States was governed for most of its history (the New York Times columnist Jamelle Bouie recently made this argument as well). As the legal historian Christopher Tomlins has shown, American law after the revolution was concerned with subjugation and the creation of freedom for a select few at the expense of the labor of everyone else. Even after the Civil War ended chattel slavery in the United States, many state legislatures imposed barriers to voting such as poll taxes and property requirements. These requirements were sometimes formally neutral and sometimes explicitly favored whites (through certain exemptions), but always had the substantive effect of disproportionately preventing Black voters from casting votes. The U.S. Constitution has prohibited racial restrictions on the right to vote since 1869, but formally neutral legal rules intersected with social hierarchy and disadvantage to ensure that as a matter of practice, whites were largely able to exclude Blacks from political power. In short, American whites governed according to the techniques explained by Scheppele – the use of the rule of law to undermine democracy.
Gerrymandering and the Independent State Legislature
The Voting Rights Act of 1965, a significant victory of the Civil Rights Movement, prohibited many of the disenfranchisement tactics of American history. However, a significant barrier in democratic representation has remained the problem of gerrymandering – how the lines that determine electoral districts for federal representation within states are drawn (in the United States, seats in state legislatures and the House of Representatives are elected based on ‘districts’ determined at the state level). Political scientists have confirmed that district drawing can be used to determine results; in one test of Wisconsin, a Democratic vote of up to 52% for legislative seats can produce a strong Republican victory and supermajority control of the legislature.
Racial gerrymandering remains unconstitutional at the federal level, but since 2019 the U.S. Supreme Court has said that partisan gerrymandering – drawing district maps to ensure the victory of a particular party – is a ‘political question’ beyond the reach of the federal courts, and reviewable only at the state court level. Thus, the true significance of Moore v. Harper is that it offers a return to the antidemocratic past that characterized much American history, and the authoritarian future that Scheppele describes in Hungary and Poland. If state legislatures are truly independent of political review in their partisan line drawing activities, the rule of law will lead to specific parties exclusively and permanently controlling legislative bodies, regardless of what the voters say – a crushing blow to democratic constitutionalism.