Donald Trump thought little of democratic principles during his four-year US presidency. The storming of the Capitol, which it now turns out he accepted with approval, was the nadir of what was in many ways an undignified tenure.
At the same time, Trump left a toxic conservative legacy to American society. During his time in the White House, he appointed more than 200 conservative judges to the federal courts in America – for life. Including Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the Supreme Court – America’s highest court.
Since then, there have been six Republican judges facing three Democrats. The recent controversial verdict on the ban on abortions in the USA made clear which partisan political line is being followed here.
And Trump’s well-considered personnel decisions could also have profound consequences for American democracy. The Supreme Court announced last week that it will consider the case between Republican Timothy K. Moore and North Carolina plaintiff Rebecca Harper (“Moore vs. Harper”) during the upcoming fall legislature. A case that, depending on the verdict, could massively undermine the voting rights of citizens in the United States. But what exactly is it about?
The core of what is being negotiated is the theory known as the “Independent State Legislature Doctrine” in the USA. It is about the interpretation of a passage from the election clause of the American constitution, according to which the implementation, and depending on the interpretation also the control, of state elections is solely and exclusively the responsibility of the legislature (“legislature”), i.e. the local parliaments.
A quite extreme interpretation that invites the abuse of power. For this reason, too, lawyers have interpreted the clause in the past in such a way that states have powers to conduct elections, but they are divided equally between citizens, the executive, the legislature and the courts in a democratic sense.
The theory only received new attention in the course of the 2020 US election, when Trump’s lawyers were looking for legal options to avert the election defeat.
In the specific case of North Carolina, after the last census two years ago, Republican lawmakers had redrawn the constituencies along demographic distributions. Democratic voters challenged the verdict, saying Republicans had changed the borders in their own favor.
The North Carolina Supreme Court upheld the Democrats earlier this year. The process, known in the US as “gerrymandering,” had to be reversed, prompting Republican lawmakers to take the case to the Supreme Court.
Should the Supreme Court actually allow the radical doctrine, it would have profound consequences: possibly even for the 2024 presidential election.
The control of voters and national courts over state legislatures would be massively restricted – be it when redrawing constituencies or even when introducing anti-democratic electoral laws.
In extreme cases, for example, states could freely enact laws that relieve their electors from the obligation to vote according to the official election result in the presidential election. If a presidential candidate wins a state, all electors there go to his account. In Washington, they then vote for the victorious candidate in their state according to the wishes of the voters – normally.
In America, electors who do not follow the instructions of the voters are called “faithless electors”. Even during his election defeat, Trump toyed with the idea of inciting the Republican electors against the winner Joe Biden.
The plan: The following lawsuits should have been decided in the conservative Supreme Court pro Trump. Such legal protection could be abolished by “Moore vs. Harper”.
After his defeat in 2020, Trump never missed an opportunity to describe the election result as illegal and rigged. The fact that the conservative Supreme Court is now dealing with “Moore vs. Harper” is entirely in line with the line taken by the former US President and his Republican party.
In the year after Trump’s defeat, Republican lawmakers in their states passed a large number of laws that make it more difficult for citizens to vote instead of making it easier. In 30 states, they hold the majority in both houses of parliament and could thus easily apply the possible Supreme Court decision.
Trump has not yet officially announced whether he will run for a second term. If the Republican plaintiffs are right in the Moore vs. Harper case, it would greatly improve his chances of re-election.
Meanwhile, the horror on the democratic side is great. Commenting on the case, Suzanne Almeida, director of the bipartisan democracy initiative Common Cause, told the Washington Post: “It is part of a broader strategy aimed at making voting difficult and the will of state legislatures.” independent of the will of the population.”
The well-known left-wing US politician Alexandria Ocasio-Cortez, who sits as a Democrat in the House of Representatives, described the Supreme Court’s announcement as a “judicial coup”.
“Unless the President and Congress restrain the Supreme Court, the next thing they will do is tackle the presidential election. All our politicians – regardless of their party – must recognize this constitutional crisis for what it is,” she wrote on her Twitter account.