Ever since then-President Donald Trump placed three conservative justices there, the U.S. Supreme Court has seemed to many like an extension of the extreme right wing of the national Republican Party.
Now, after an early December court hearing on a lawsuit aiming to give state legislatures — and only the legislatures — power over almost every aspect of how federal elections are conducted, there suddenly arises the possibility of a major backfire from any such decision by America’s highest court.
The reason for this potential backfire resides most prominently here in California. This state is so large and leans so strongly Democratic that if legislators here reverse some longstanding state election policies, they could cause big changes nationally.
Especially if some potential California actions were imitated in other large-population blue states like Illinois and New York and Oregon and Washington.
Here are the stakes in the Supreme Court case brought by Republican legislators in North Carolina: State legislatures could be authorized to draw future legislative and congressional district boundaries any way they like, with no say for either governors or state courts.
The North Carolina GOP sued because that state’s Supreme Court wouldn’t let them get away with patently partisan district maps guaranteed to perpetuate big Republican majorities in its legislature and congressional delegation.
If the Supreme Court, as some justices have indicated it might, awards such ultimately extreme powers to state legislatures, it could also be permitting state lawmakers to substitute presidential Electoral College members of their preference for those elected by voters.
This would be a prescription for election irrelevance, and would make voter suppression laws of the recent past look like mild, amateur tactics.
Essentially, it would let state legislatures and not the voters of any or all states make the most important civic decisions virtually unchecked.
Except…California legislators would have it in their power to reverse much of what multiple other states might do. They could create a whole new kind of check and balance for the court and those other legislatures to consider.
In a way, California voters created today’s small Republican majority in the House of Representatives when they used ballot propositions to set up independent redistricting commissions for legislative and congressional districts here.
The new GOP majority exists only because California elected 40 Democrats and 12 Republicans to the House in November, using district lines drawn by the independent commission, which had equal numbers of Republicans and Democrats.
But if the Supreme Court says legislatures — and not voters have ultimate power over redistricting, state lawmakers here could overturn the independent commission’s district lines anytime they like.
With Democrats holding two-thirds-plus majorities in both houses of this state’s Legislature, they could draw any lines they wished, should the Supreme Court find for the North Carolina Republicans.
Does anyone seriously think a Democratic-drawn plan here would have enabled narrow victories for Republican representatives like John Duarte, Michelle Steel, Mike Garcia, David Valadao, Kevin Kiley or Young Kim, without whom there is no GOP majority?
Does anyone seriously think a Democratic-drawn plan would have set up Orange County Democrat Katie Porter for several nail-biting post-election weeks?
There’s not a chance of that. Nor would there be any chance for Republicans, as they just did, to take away a formerly Democratic seat in Oregon. The same in Illinois and New York, scene of a major Republican upset.
So there is plenty of room for backfire if the Supreme Court goes extreme in granting state legislators almost unchecked power.
And what if the high court gave Republican-led legislatures in states like Wisconsin and Pennsylvania authority to substitute presidential electors different from those chosen by voters, and those legislatures then actually did that and reversed a national election outcome?
Does the Supreme Court seriously believe only extremist far-right activists are capable of reacting with an insurrection? If so, they’ve forgotten the almost anonymous leftists of antifa, who in 2020 and 2021 rioted and took over parts of cities like Portland and Seattle.
So here’s a cautionary word to the conservative Supreme Court majority: If you open Pandora’s box and sow the wind by changing America’s traditional political and electoral checks and balances, you could live to reap whatever whirlwind might follow.
Email Thomas Elias at [email protected].