SCOTUS May Be Preparing To Gut Any State Court Oversight Of Elections, Ensuring GOP Dominance

While Trump and his Republican co-conspirators in Congress attempt to gut the rule of law by obstructing, attacking, and eliminating anyone who has the temerity to investigate the President, Republicans and their co-conspirators on the Supreme Court are working on making sure that Democrats can never get freely elected.

A few days ago, I wrote about at least one win for our democracy when the Pennsylvania Supreme Court ruled that the state's legislative districts violated the state's Constitution. The Court ordered the state legislature to redraw neutral districts in time for the 2018 primary and electoral season and, if the legislature did not comply, the Court would draw the districts themselves. Extreme partisan gerrymandering in 2012 resulted in Democrats winning only 5 of 18 seats despite barely but actually winning the total popular vote in the state and Democrats have made no further inroads since.

Part of the Court's ruling required the legislature turn over information about how the 2012 maps were drawn in order to help prepare the Court for the eventuality of having to redraw the districts itself. Yesterday, Republican State Senate President Pro Tempore Joe Scarnati refused to comply with the Court's document request and indicated that he would not comply with any further requests regarding the legislative districts. Of course, it is simply unlawful for Scarnati to refuse to obey the Court's order unless he gets a stay from the court he is appealing to, which he has not. But, these days, especially when it comes to voting rights, Republicans do not seem to believe the courts really constraint them. This refusal to cooperate is a simple strategy to delay drawing any new districts as long as possible so that they will still have to be used for the 2018 election. This had been a highly effective tactic for Republicans in North Carolina and Wisconsin, for instance, throughout this entire decade.

Scarnati based his refusal on an appeal to the US Supreme Court that claims the state Court's decision is unconstitutional. That appeal is based on the theory that Article 1 of the Constitution states, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof". Pennsylvania's Republicans believe that the state Court's decision infringes on that constitutional right.

The state Court, however, had based its decision entirely on the Pennsylvania State Constitution, rendering an appeal to federal courts moot in the eyes of most legal observers.  Justice Alito, who handles appeals coming from Pennsylvania, was expected to throw the appeal out based on a 2015 case that established that the Article 1 clause does not give legislatures exclusive authority over elections. That 2015 case involved an amendment to the State Constitution that moved redistricting out of the hands of the legislature to a non-partisan redistricting commission. The Supreme Court ruled that change was permissible under the US Constitution.

But this Supreme Court is more governed by ideology than legal precedent and consistency. Instead of summarily dismissing the appeal, Alito asked the voting rights advocates to respond, indicating that the Court may actually hear this case. As the Slate article notes, "If they do, the intervention will mark an extraordinary expansion of the court’s power to prevent states from protecting their residents’ voting rights". A ruling in support of this appeal would mean that state legislatures would have absolute authority to engage in extreme partisan gerrymandering and would effectively negate several state constitutions that require non-partisan redistricting.

What is especially disconcerting about this idea that Article 1 supersedes state constitutions is that it has been used before by certain Supreme Court justices in an important prior case, namely Bush v. Gore. There, three conservative justices, Rehnquist, Scalia, and Thomas, claimed that the Florida Supreme Court's decision to recount the ballots was invalid because that decision was entirely within the purview of the state legislature. From Slate again, "It’s a frightening theory that could, taken to its logical endpoint, forbid every state’s highest court from safeguarding the right to cast an effective ballot." But it's a theory that has been used before to help get Republicans elected and is apparently being cranked up again for the same purpose by a new handful of conservative Supreme Court Justices.