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      Supreme Court Hears Case That Could Transform Federal Elections

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      The justices are considering whether to adopt the “independent state legislature theory,” which would give state lawmakers nearly unchecked power over federal elections.WASHINGTON — The Supreme Court is hearing arguments on Wednesday about whether to adopt a legal theory that would radically reshape how federal elections are conducted. The theory would give state legislatures enormous and largely unchecked power to set all sorts of election rules, notably by drawing congressional maps warped by partisan gerrymandering.The Supreme Court has never endorsed the “independent state legislature” theory, but four of its conservative members have issued opinions that seemed to take it very seriously.The theory is based on a reading of the Constitution’s Elections Clause, which says: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”Proponents of the strongest form of the theory say this means that no other organ of state government can alter a legislature’s actions on federal elections. They say that state supreme courts cannot require state laws to conform to state constitutions, that governors may not use their veto power to reject bills about federal elections, that election administrators may not issue regulations adjusting legislative enactments to take account of, say, a pandemic and that voters may not create independent redistricting commissions to address gerrymandering.Understand the U.S. Supreme Court’s New TermCard 1 of 6A race to the right. More

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      North Carolina’s Governor Says a Fringe Claim Before the Supreme Court Would Upend Democracy

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      Over the past six months, the United States Supreme Court has handed down one misguided ruling after another, stripping Americans of the constitutional right to an abortion, curtailing the regulation of guns and industrial emissions, and muddying the divide between church and state. The people have protested. They’ve organized. And in 2022, they voted.In Dobbs v. Jackson Women’s Health Organization, the June decision on abortion, the majority wrote that “women are not without electoral or political power.” That’s one thing they got right, and Republicans found that out the hard way in the November midterm elections that they expected to win big. Now, however, the very ability to exercise electoral and political power at the ballot box is hanging in the balance in a case the court is scheduled to hear on Wednesday.Moore v. Harper is a case from North Carolina that state and national Republicans are using to push an extreme legal premise known as the “independent state legislature theory.” While the United States Constitution delegates the authority to administer federal elections to the states, with Congress able to supersede those state decisions, proponents of this theory argue that state legislatures are vested with the exclusive power to run those elections. This view would leave no room for oversight by state courts and put the ability of governors to veto election-related legislation in doubt.The court’s decision on this alarming argument could fundamentally reshape American democracy. Four justices have suggested that they are sympathetic to the theory. If the court endorses this doctrine, it would give state legislatures sole power over voting laws, congressional redistricting, and potentially even the selection of presidential electors and the proper certification of election winners.Indeed, the North Carolina Supreme Court, in a decision earlier this year, said the theory that state courts are barred from reviewing a congressional redistricting plan was “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”You can look to North Carolina to see the potential for dire consequences. In 2010, Republicans took over the state legislature in a midterm election. Since then, North Carolina has been ground zero for Republican attempts to manipulate elections. As the state’s attorney general and now governor since 2017, I’ve dealt with Republican legislative leaders as they advanced one scheme after another to manipulate elections while making it harder for populations they have targeted to vote.These schemes robbed voters from the start to the end of an election: a voter ID requirement so strict that a college ID from the University of North Carolina isn’t good enough. No same-day registration during early voting. No provisional ballots for voters who show up at the wrong precinct. Shorter early voting periods eliminated voting the Sunday before Election Day, a day when African American churches hold popular “souls to the polls” events.Fortunately, these measures were stopped in 2016 by the U.S. Court of Appeals for the Fourth Circuit, which described them as targeting African Americans “with almost surgical precision.”Republicans in the legislature have also gerrymandered districts in diabolical ways. In 2016, state Republicans drew a congressional redistricting map that favored Republicans 10-3. They did so, the Republican chairman of a legislative redistricting committee explained, “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”North Carolinians have relied on courts and my veto power as governor to foil many of these schemes. In 2022 a successful lawsuit in state court challenging a 2021 gerrymandered congressional map resulted in fair districts, splitting the state’s 14 districts (the state gained a district after the 2020 census) so that Democrats and Republicans each won seven seats in November’s elections. It seemed only right, given the nearly even divide between Democratic and Republican votes statewide. Republican efforts to avoid this result led to the Moore v. Harper appeal now before the Supreme Court.As recently as 2019, Chief Justice John Roberts wrote in a majority opinion on partisan gerrymandering claims in Maryland and North Carolina that state courts were an appropriate venue to hear such cases but that those claims were political issues beyond the jurisdiction of the federal courts. Retreating from that position on the role of state courts would be a shocking leap backward that would undermine the checks and balances established in state constitutions across the country.Republican leaders in the North Carolina state legislature have shown us how the elections process can be manipulated for partisan gain. And that’s what you can expect to see from state legislatures across the country if the court reverses course in this case.Our democracy is a fragile ecosystem that requires checks and balances to survive. Giving state legislatures unfettered control over federal elections is not only a bad idea but also a blatant misreading of the Constitution. Don’t let the past decade of North Carolina voting law battles become a glimpse into the nation’s future.Roy Cooper, a Democrat, has been the governor of North Carolina since 2017. He was previously elected to four terms as attorney general.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Is Donald Trump Ineligible to Be President?

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      How does a democracy protect itself against a political leader who is openly hostile to democratic self-rule? This is the dilemma the nation faces once again as it confronts a third presidential run by Donald Trump, even as he still refuses to admit he lost his second.Of course, we shouldn’t be in this situation to begin with. The facts are well known but necessary to repeat, if only because we must never become inured to them: Abetted by a posse of low-rent lawyers, craven lawmakers and associated crackpots, Mr. Trump schemed to overturn the 2020 election by illegal and unconstitutional means. When those efforts failed, he incited a violent insurrection at the United States Capitol, causing widespread destruction, leading to multiple deaths and — for the first time in American history — interfering with the peaceful transfer of power. Almost two years later, he continues to claim, without any evidence, that he was cheated out of victory, and millions of Americans continue to believe him.The best solution to behavior like this is the one that’s been available from the start: impeachment. The founders put it in the Constitution because they were well acquainted with the risks of corruption and abuse that come with vesting great power in a single person. Congress rightly used this tool, impeaching Mr. Trump in 2021 to hold him accountable for his central role in the Jan. 6 siege. Had the Senate convicted him as it should have, he could have been disqualified from holding public office again. But nearly all Senate Republicans came to his defense, leaving him free to run another day.There is another, less-known solution in our Constitution to protect the country from Mr. Trump: Section 3 of the 14th Amendment, which bars from public office anyone who, “having previously taken an oath” to support the Constitution, “engaged in insurrection or rebellion” or gave “aid or comfort” to America’s enemies.On its face, this seems like an eminently sensible rule to put in a nation’s governing document. That’s how Representative David Cicilline of Rhode Island, who has drafted a resolution in Congress enabling the use of Section 3 against Mr. Trump, framed it. “This is America. We basically allow anyone to be president,” Mr. Cicilline told me. “We set limited disqualifications. One is, you can’t incite an insurrection against the United States. You shouldn’t get to lead a government that you tried to destroy.”This was also the reasoning of the 14th Amendment’s framers, who intended it to serve as an aggressive response to the existential threat to the Republic posed by the losing side of the Civil War. Section 3 was Congress’s way of ensuring that unrepentant former Confederate officials — “enemies to the Union” — were not allowed to hold federal or state office again. As Representative John Bingham, one of the amendment’s lead drafters, put it in 1866, rebel leaders “surely have no right to complain if this is all the punishment the American people shall see fit to impose upon them.”And yet despite its clarity and good sense, the provision has rarely been invoked. The first time, in the aftermath of the Civil War, it was used to disqualify thousands of Southern rebels, but within four years, Congress voted to extend amnesty to most of them. It was used again in 1919 when the House refused to seat a socialist member accused of giving aid and comfort to Germany in World War I.In September, for the first time in more than a century, a New Mexico judge invoked Section 3, to remove from office a county commissioner, Couy Griffin, who had been convicted of entering the Capitol grounds as part of the Jan. 6 mob. This raised hopes among those looking for a way to bulletproof the White House against Mr. Trump that Section 3 might be the answer.I count myself among this crowd. As Jan. 6 showed the world, Mr. Trump poses a unique and profound threat to the Republic: He is an authoritarian who disregards the Constitution and the rule of law and who delights in abusing his power to harm his perceived opponents and benefit himself, his family and his friends. For that reason, I am open to using any constitutional means of preventing him from even attempting to return to the White House.At the same time, I’m torn about using this specific tool. Section 3 is extraordinarily strong medicine. Like an impeachment followed by conviction, it denies the voters their free choice of those who seek to represent them. That’s not the way democracy is designed to work.And yet it is true, as certain conservatives never tire of reminding us, that democracy in the United States is not absolute. There are multiple checks built into our system that interfere with the expression of direct majority rule: the Senate, the Supreme Court and the Electoral College, for example. The 14th Amendment’s disqualification clause is another example — in this case, a peaceful and transparent mechanism to neutralize an existential threat to the Republic.Nor is it antidemocratic to impose conditions of eligibility for public office. For instance, Article II of the Constitution puts the presidency off limits to anyone younger than 35. If we have decided that a 34-year-old is, by definition, not mature or reliable enough to hold such immense power, then surely we can decide the same about a 76-year-old who incited an insurrection in an attempt to keep that power.So could Section 3 really be used to prevent Mr. Trump from running for or becoming president again? As a legal matter, it seems beyond doubt. The Capitol attack was an insurrection by any meaningful definition — a concerted, violent attempt to block Congress from performing its constitutionally mandated job of counting electoral votes. He engaged in that insurrection, even if he did not physically join the crowd as he promised he would. As top Democrats and Republicans in Congress said during and after his impeachment trial, the former president was practically and morally responsible for provoking the events of Jan. 6. The overwhelming evidence gathered and presented by the House’s Jan. 6 committee has only made clearer the extent of the plot by Mr. Trump and his associates to overturn the election — and how his actions and his failures to act led directly to the assault and allowed it to continue as long as it did. In the words of Representative Liz Cheney, the committee’s vice chair, Mr. Trump “summoned the mob, assembled the mob and lit the flame of this attack.”A few legal scholars have argued that Section 3 does not apply to the presidency because it does not explicitly list that position. It is hard to square that claim with the provision’s fundamental purpose, which is to prevent insurrectionists from participating in American government. It would be bizarre in the extreme if Mr. Griffin’s behavior can disqualify him from serving as a county commissioner but not from serving as president.It’s not the legal questions that give me pause, though; it’s the political ones.First is the matter of how Republicans would react to Mr. Trump’s disqualification. An alarmingly large faction of the party is unwilling to accept the legitimacy of an election that its candidate didn’t win. Imagine the reaction if their standard-bearer were kept off the ballot altogether. They would thunder about a “rigged election” — and unlike all the times Mr. Trump has baselessly invoked that phrase, it would carry a measure of truth. Combine this with the increasingly violent rhetoric coming from right-wing media figures and politicians, including top Republicans, and you have the recipe for something far worse than Jan. 6. On the other hand, if partisan outrage were a barrier to invoking the law, many laws would be dead letters.The more serious problem with Section 3 is that it is easy to see how it could morph into a caricature of what it is trying to prevent. Keeping specific candidates off the ballot is a classic move of autocrats, from Nicolas Maduro in Venezuela to Aleksandr Lukashenko in Belarus to Vladimir Putin. It sends the message that voters cannot be trusted to choose their leaders wisely — if at all. And didn’t we just witness Americans around the country using their voting power to repudiate Mr. Trump’s Big Lie and reject the most dangerous election deniers? Shouldn’t we let elections take their course and give the people the chance to (again) reject Mr. Trump at the ballot box?To help me resolve my ambivalence, I called Representative Jamie Raskin of Maryland, who sits on the Jan. 6 committee and taught constitutional law before joining Congress. He acknowledged what he called an understandable “queasiness” about invoking Section 3 to keep Mr. Trump off the ballot. But Mr. Raskin argued that this queasiness is built into the provision. “What was the constitutional bargain struck in Section 3?” he asked. “There would be a very minor incursion into the right of the people to elect exactly who they want, in order to obtain much greater security for the constitutional order against those who have demonstrated a propensity to want to overthrow it when it is to their advantage.”The contours of the case for Mr. Trump’s disqualification might get stronger yet, as the Justice Department and state prosecutors continue to pursue multiple criminal investigations into him and his associates and as the Jan. 6 committee prepares to release its final report. While he would not be prohibited from running for office even if he was under criminal indictment, it would be more politically palatable to invoke Section 3 in that case and even more so if he was convicted.I still believe that the ideal way for Mr. Trump to be banished for good would be via the voters. This scenario is democracy’s happy ending. After all, self-government is not a place; it is a choice, and an ongoing one. If Americans are going to keep making that choice — in favor of fair and equal representation, in favor of institutions that venerate the rule of law and against the threats of authoritarian strongmen — they do it best by themselves. That is why electoral victory is the ultimate political solution to the ultimate political problem. It worked that way in 2020, when an outright majority of voters rejected Mr. Trump and replaced him with Joe Biden.But it’s essential to remember that not all democracies have happy endings. Which brings us to the most unsettling answer to the question I began with: Sometimes a democracy doesn’t protect itself. There is no rule that says democracies will perpetuate themselves indefinitely. Many countries, notably Hungary and Turkey, have democratically undone themselves by electing leaders who then dismantled most of the rights and privileges people tend to expect from democratic government. Section 3 is in the Constitution precisely to help ensure that America does not fall into that trap.Whether or not invoking Section 3 succeeds, the best argument for it is to take the Constitution at its word. “We undermine the importance of the Constitution if we pick and choose what rules apply,” Mr. Cicilline told me. “One of the ways we rebuild confidence in American democracy is to remind people we have a Constitution and that it has in it provisions that say who can run for public office. You don’t get to apply the Constitution sometimes or only if you feel like it. We take an oath. We swear to uphold it. We don’t swear to uphold most of it. If Donald Trump has taught us anything, it’s about protecting the Constitution of the United States.”Surely the remedy of Section 3 is worth pursuing only in the most extraordinary circumstances. Just as surely, the events surrounding Jan. 6 clear that bar. If inciting a violent insurrection to keep oneself in office against the will of the voters isn’t such a circumstance, what is?The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow the New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      This Is How to Put the Supreme Court in Its Place

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      I have written before about the ways that Congress could restrain an overbearing and ideological Supreme Court, using its powers under the Constitution.In short, Article III, Section 2 states that the Supreme Court shall have “original jurisdiction” in all cases affecting “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” And in all other cases, the court shall have “appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”The “exceptions” and “regulations” are key. Most of the business of the Supreme Court is appellate work. It hears cases that have already gone through the federal judicial process. Dobbs v. Jackson Women’s Health Organization, for example, began its life as a case before the U.S. District Court for the Southern District of Mississippi before going to the U.S. Court of Appeals for the Fifth Circuit, which holds appellate jurisdiction over Texas, Mississippi and Louisiana. If Congress can regulate the appellate jurisdiction of the Supreme Court, then it can determine which cases it can hear, the criteria for choosing those cases and even the basis on which the court can make a constitutional determination.Congress could say, for instance, that the court needs more than a bare majority to overturn a federal statute. Even if you agree that the court has the mostly exclusive right to interpret the Constitution, it doesn’t therefore follow that five justices can essentially nullify the constitutional views of the legislators who passed a law, the president who signed it and the four other justices who affirmed it. Constitutional meaning, in other words, flows as much from the elected branches (and the people themselves) as it does from courts and legal elites.In the same way that it takes a supermajority of Congress to propose a constitutional amendment, it should probably take a supermajority of the court to say what the Constitution means, especially when it relates to acts and actions of elected officials. If there is any place for mandatory consensus in our government, it should be in an area where any given decision can have broad and far-reaching consequences for the entire constitutional order.Typically when I write about these issues it is all hypothetical, under the assumption that Congress hasn’t ever used its power to shape the court in this manner. But recently, while reading up on legal disputes during Reconstruction, I learned that at one point Congress attempted to do exactly what I’ve described: limit the court’s use of judicial review to overturn congressional statutes by raising the bar for a decision from a simple majority to a supermajority.At issue was the Supreme Court’s decision in Ex parte Milligan. In 1864, Union Army officers arrested a group of Indiana Democrats who had been vocal critics of the Lincoln administration and its allies. A military commission authorized by President Abraham Lincoln under a previously issued executive order charged the men — including Lambdin P. Milligan, a leader in the “Order of American Knights,” a pro-slavery, secessionist group — with, among other things, inciting insurrection and conspiring against the U.S. government. Milligan and others were convicted and sentenced to death.The following year, in May, lawyers for Milligan filed a petition for a writ of habeas corpus in the circuit court district of Indiana. Shortly thereafter, President Andrew Johnson — who took office the month before in the wake of Lincoln’s assassination — commuted Milligan’s sentence to life in prison. In the meantime, Justice David Davis — who rode circuit in Indiana, hearing cases along with a Federal District Court judge as they moved through the appeals process — reviewed Milligan’s petition. Davis did not think that a military commission was the appropriate way to try Milligan, a civilian in a state where there was no active rebellion. The other judge disagreed.Their disagreement sent the case to the Supreme Court, which held oral arguments the next year, in 1866. Writing for five of the nine justices, Davis declared it unconstitutional to try civilians in military courts when civilian courts were still available. Chief Justice Salmon P. Chase, along with the remaining three justices, agreed that the use of military courts was inappropriate but disagreed that it was unconstitutional. The overall judgment on Milligan’s treatment was unanimous, but on the constitutional issue, there was a 5-4 split.“For the chief justice,” Walter Stahr explains in “Salmon P. Chase: Lincoln’s Vital Rival,” “the Milligan case was only in part about events in Indiana in the recent past; it was also about the scope of federal authority in the violent present. Chase was well aware that, in many parts of the South, the state civilian courts provided no protections for blacks; only the federal military courts would punish whites for crimes against blacks.”Republicans in Congress, still struggling with Johnson for control of Reconstruction policy, were outraged. The Chicago Tribune spoke for many Republicans when it said that this decision — along with another that concerned the ability of Congress and the states to require a loyalty or “test” oath for former Confederates who wished to serve in public capacity — showed a “deliberate purpose of the Supreme Court to thus usurp the legislative powers of the government to defeat the will of the loyal men of this nation in the interests of a rebellion crushed by military power.”The remedy for this problem, The Tribune wrote, was simple: “We think the time has come for Congress to pass a law requiring the concurrence of three-fourths, or at least two-thirds of the whole bench, to pronounce authoritatively against the constitutionality of any act of Congress.”Republicans took heed of the argument. In 1868, as Congress awaited the court’s decision in another case, Ex parte McCardle, that could undermine its military Reconstruction policies, the House of Representatives debated a bill that would require, according to The New York Herald, “a concurrence of two-thirds of all the members necessary to a decision adverse to the validity of any law of the United States.”Democrats condemned the bill as one of the “very gravest” of “all the revolutionary measures brought before the last or present Congress tending to subvert and destroy the institutions of the country.” If Congress could override the “deliberate judgment of the Supreme Court of the United States,” declared Representative Samuel S. Marshall of Illinois, as recorded by The New York Times, “there would be established a despotism, not of one man, but an oligarchy or a mob, elected by the people, but usurping powers never given to it by the Constitution or the people.”Representative John Bingham of Ohio, author of the 14th Amendment and a Republican, disagreed. “It would be a sad day for American institutions and for the sacred cause of Republican Governments if any tribunal in this land, created by the will of the people, was above and superior to the people’s power.” The Supreme Court, he continued, in a reference to its decision in Dred Scott v. Sandford, “had disgraced not only itself as a tribunal of justice, but it had disgraced humanity when it dared to mouth from its high seat of justice, the horrible blasphemy that there were human beings, either in this land, or in any land, whose rights white men were not bound to respect.”The bill passed the House and Senate but it was never signed into law. President Johnson simply refused. In February, the House voted overwhelmingly to impeach Johnson, who was eventually acquitted in the Senate by a single vote. After this, as far as I can tell, Republicans in Congress made no further effort to force the issue.In November, Republicans won the White House with Ulysses S. Grant at the top of the ticket. In 1869, a Republican Congress passed a law that set the size of the Supreme Court at nine justices (up from eight) and provided that any justice over 70 with sufficient experience could retire at full salary for the rest of his life. By mid-1870, Grant had appointed two associate justices of the Supreme Court, who would go on to affirm his policies. Republicans were content that the court was in their hands.The point of all this is to say that disputes over the Supreme Court’s power of judicial review are not new. The reforms to curb it, likewise, are not novel. And even if you stipulate that the Republicans of 1868 were motivated by partisan concerns, it is also true that these Republicans — the lawmakers who wrote the Reconstruction amendments and reshaped our entire constitutional order — grasped a serious problem with the Supreme Court’s role in our ostensibly democratic political system. Their experience of the previous decade — of Dred Scott and the secession crisis and the war — had put court reform at top of mind, even if they ultimately only took minor steps to reshape the institution.But this decision to spare the court the rod of discipline undermined the Republicans’ own political project, although they could not see this in the moment. Within 20 years, the Supreme Court would render much of the 13th and 14th Amendments a dead letter. And by the end of the century, the 15th would have almost no impact on life in the South.Despite some of the more interesting ideas that came out of President Biden’s court reform commission, there is no chance at this time for serious court reform. There is no consensus for it within the Democratic Party and there are certainly not the votes for it in Congress. But circumstances do change, often unexpectedly. Should progressives gain the opportunity to make structural changes to the Supreme Court, they should take it. Democrats in the 21st century should not make the same mistake Republicans in the 19th century did.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      This Is What Happens When Election Deniers Let Their Freak Flag Fly

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      Here’s a prediction: If Donald Trump is on the ballot in 2024, there is little reason to think that the United States will have a smooth and uncomplicated presidential election.Just the opposite, of course. Republican candidates for governor and secretary of state who are aligned with Trump have promised, repeatedly and in public, to subvert any election result that doesn’t favor the former president if he runs again.On Saturday, for example, the Republican nominee for secretary of state in Nevada, Jim Marchant, told a crowd at a rally for Trump and the statewide Republican ticket that his victory — Marchant’s victory, that is — would help put Trump back into the White House.“President Trump and I lost an election in 2020 because of a rigged election,” Marchant said, with Trump by his side. “I’ve been working since Nov. 4, 2020, to expose what happened. And what I found out is horrifying. And when I’m secretary of state of Nevada, we’re going to fix it. And when my coalition of secretary of state candidates around the country get elected, we’re going to fix the whole country and President Trump is going to be president again in 2024.”This is very different from a de rigueur promise to help a candidate win votes. Marchant, a former state assemblyman, believes (or at least says he believes) that Joe Biden and the Democratic Party stole the 2020 presidential election away from Trump, whom he regards as the rightful and legitimate president.He said as much last year, in an interview with Eddie Floyd, a Nevada radio host with a taste for electoral conspiracy theories: “The 2020 election was a totally rigged election. Whenever I speak, I ask everybody in the audience, I says, ‘Is there anybody here that really believes Joe Biden was legitimately elected?’ And everywhere I go, not one hand goes up. Nobody believes that he was legitimately elected.”Marchant, as he noted in his rally speech, leads a coalition of 2020 election-denying America First candidates for governor and secretary of state. It’s a who’s who of MAGA Republicans, including Kari Lake and Mark Finchem of Arizona, Doug Mastriano of Pennsylvania and Kristina Karamo of Michigan.If elected, any one of these candidates could, at a minimum, create chaos in vote casting and vote counting and the certification of election results. Marchant, for example, has said that he wants to eliminate same-day voting, mail-in voting and ballot drop boxes. He also wants to dump machine ballot tabulation and move to hand counts, which are time-consuming, expensive and much less accurate.That’s the point, of course. The problem for election-denying candidates is that ordinarily the process is too straightforward and the results are too clear. Confusion sows doubt, and doubt gives these Republicans the pretext they need to claim fraud and seize control of the allocation of electoral votes.Congress could circumvent much of this with its revised Electoral Count Act, which appears to have a filibuster-proof majority in the Senate. But if the act passes, the danger does not end there. Even if Congress closes the loopholes in the certification of electoral votes, the right-wing majority on the Supreme Court could still give state legislatures free rein to run roughshod over the popular will.This is not theoretical. In Moore v. Harper, which will be heard later this term, the court will weigh in on the “independent state legislature” theory, a once-rejected claim that was reintroduced to conservative legal thinking in a concurring opinion in Bush v. Gore by Chief Justice William Rehnquist. It was later embraced by the conservative legal movement in the wake of the 2020 presidential election, when lawyers for Donald Trump seized on the theory as a pretext for invalidating ballots in swing states where courts and election officials used their legal authority to expand ballot access without direct legislative approval. Under the independent state legislature theory, the Constitution gives state legislatures exclusive and plenary power to change state election law, unbound by state constitutions and state courts.This, as I’ve discussed in a previous column, is nonsense. It rests on a selective interpretation of a single word in a single clause, divorced from the structure of the Constitution as well as the context of its creation, namely the effort by national elites to strengthen federal authority and limit the influence of the states.Why, in other words, would the framers and ratifiers of the Constitution essentially reinscribe the fundamental assumption of the Articles of Confederation — the exclusive sovereignty of the states — in a document designed to supersede them? As J. Michael Luttig, a legal scholar and former judge on the U.S. Court of Appeals for the Fourth Circuit (appointed by George H.W. Bush), wrote in a recent essay for The Atlantic, “There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions.”But the total lack of support for the independent state legislature theory in American history or constitutional law may not stop the Supreme Court from affirming it in the Constitution, if the conservative majority believes it might give the Republican Party a decisive advantage in future election contests. And it would. Under the strongest forms of the independent state legislature theory, state lawmakers could allocate electoral votes against the will of the voters if they concluded that the election was somehow tainted or illegitimate.Which brings us back to the election deniers running in Arizona, Nevada, Michigan, Pennsylvania and elsewhere. Victory for the election deniers in any state would, in combination with any version of the independent state legislature theory, put the United States on the glide path to an acutely felt constitutional crisis. We may face a situation where the voters of Nevada or Wisconsin want Joe Biden (or another Democrat) for president, but state officials and lawmakers want Trump, and have the power to make it so.One of the more ominous developments of the past few years is the way that conservatives have rejected the language of American democracy, saying instead that the United States is a “republic and not a democracy,” in a direct lift from Robert Welch, founder of the John Birch Society, who made the phrase a rallying cry against social and political equality. This rests on a distinction between the words “democracy” and “republic” that doesn’t really exist in practice. “During the eighteenth century,” the political scientist Robert Dahl once observed, “the terms ‘democracy’ and ‘republic’ were used interchangeably in both common and philosophical usage.”But there is a school of political thought called republicanism, which rests on principles of non-domination and popular sovereignty, and it was a major influence on the American revolutionaries, including the framers of the Constitution. “The fundamental maxim of republican government,” Alexander Hamilton wrote in Federalist 22, “requires that the sense of the majority should prevail.” Likewise, James Madison wrote at the end of his life that the “vital principle” of “republican government” is the “lex majoris partis — the will of the majority.”Election deniers, and much of the Republican Party at this point in time, reject democracy and the equality it implies. But what’s key is that they also reject republicanism and the fundamental principle of popular government. Put simply, they see Donald Trump as their sovereign as much as their president, and they hope to make him a kind of king.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Republicans Seek Path for Constitutional Convention

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      A new book by a former Democratic senator warns of the risks of allowing states to call for a convention. Some in the G.O.P. see it as the only way to rein in the federal government.WASHINGTON — Representative Jodey Arrington, a conservative Texas Republican, believes it is well past time for something the nation has not experienced for more than two centuries: a debate over rewriting the Constitution.“I think the states are due a convention,” said Mr. Arrington, who in July introduced legislation to direct the archivist of the United States to tally applications for a convention from state legislatures and compel Congress to schedule a gathering when enough states have petitioned for one. “It is time to rally the states and rein in Washington responsibly.”To Russ Feingold, the former Democratic senator from Wisconsin and president of the American Constitution Society, a liberal judicial group, that is a terrible idea. Mr. Feingold sees the prospect of a constitutional convention as an exceptionally dangerous threat from the right and suggests it is closer to reality than most people realize as Republicans push to retake control of Congress in November’s midterm elections.“We are very concerned that the Congress, if it becomes Republican, will call a convention,” said Mr. Feingold, the co-author of a new book warning of the risks of a convention called “The Constitution in Jeopardy.”“This could gut our Constitution,” Mr. Feingold said in an interview. “There needs to be real concern and attention about what they might do. We are putting out the alert.”While the rise of election deniers, new voting restrictions and other electoral maneuvering get most of the attention, Mr. Feingold rates the prospect of a second constitutional convention as just as grave a threat to democratic governance.“If you think this is democracy’s moment of truth, this is one of those things,” he said.Elements on the right have for years been waging a quiet but concerted campaign to convene a gathering to consider changes to the Constitution. They hope to take advantage of a never-used aspect of Article V, which says in part that Congress, “on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments.”Throughout the nation’s history, 27 changes have been made to the Constitution by another grindingly arduous route, with amendments originating in Congress subject to ratification by the states.With sharp partisanship making that path near impossible, backers of the convention idea now hope to harness the power of Republican-controlled state legislatures to petition Congress and force a convention they see as a way to strip away power from Washington and impose new fiscal restraints, at a minimum.“We need to channel the energy to restore and reclaim this country’s traditional values and founding principles of limited government closest to the people and individual freedom and responsibility,” Rick Santorum, the former Republican senator from Pennsylvania who has become a convention champion, told a conservative conference this spring in the state.More Coverage of the 2022 Midterm ElectionsAn Upset in Alaska: Mary Peltola, a Democrat, beat Sarah Palin in a special House election, adding to a series of recent wins for the party. Ms. Peltola will become the first Alaska Native to serve in Congress.Evidence Against a Red Wave: Since the fall of Roe v. Wade, it’s hard to see the once-clear signs of a Republican advantage. A strong Democratic showing in a New York special election is one of the latest examples.G.O.P.’s Dimming Hopes: Republicans are still favored in the fall House races, but former President Donald J. Trump and abortion are scrambling the picture in ways that distress party insiders.Digital Pivot: At least 10 G.O.P. candidates in competitive races have updated their websites to minimize their ties to Mr. Trump or to adjust their uncompromising stances on abortion.Mr. Santorum was pushing for Pennsylvania to become the 20th state to formally call for a convention in recent years, out of the 34 states required. But it is not clear exactly how many states have weighed in, since not all have adopted the same language and some petitions were submitted decades or longer ago and may even have been rescinded.Mr. Arrington believes that when pending petitions are fully tallied, the 34-state goal might already have been exceeded. His legislation would require the archivist to “authenticate, count and publish” applications by the states, forcing Congress to act.“The problem is that they haven’t had a ministerial, clerical mechanism for the archivist to keep a count and report to Congress,” Mr. Arrington said. “I do believe we have crossed that threshold, and it is not congressional discretion — it is a constitutional mandate — that Congress should pick a date and a place for the convention.” More

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      in Elections

      The Idea That Letting Trump Walk Will Heal America Is Ridiculous

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      The main argument against prosecuting Donald Trump — or investigating him with an eye toward criminal prosecution — is that it will worsen an already volatile fracture in American society between Republicans and Democrats. If, before an indictment, we could contain the forces of political chaos and social dissolution, the argument goes, then in the aftermath of such a move, we would be at their mercy. American democracy might not survive the stress.All of this might sound persuasive to a certain, risk-averse cast of mind. But it rests on two assumptions that can’t support the weight that’s been put on them.The first is the idea that American politics has, with Trump’s departure from the White House, returned to a kind of normalcy. Under this view, a prosecution would be an extreme and irrevocable blow to social peace. But the absence of open conflict is not the same as peace. Voters may have put a relic of the 1990s into the Oval Office, but the status quo of American politics is far from where it was before Trump.The most important of our new realities is the fact that much of the Republican Party has turned itself against electoral democracy. The Republican nominee for governor in Arizona — Kari Lake — is a 2020 presidential election denier. So, too, are the Republican nominees in Arizona for secretary of state, state attorney general and U.S. Senate. In Pennsylvania, Republican voters overwhelmingly chose the pro-insurrection Doug Mastriano to lead their party’s ticket in November. Overall, Republican voters have nominated election deniers in dozens of races across six swing states, including candidates for top offices in Georgia, Nevada and Wisconsin.There is also something to learn from the much-obsessed-over fate of Liz Cheney, the arch-conservative representative from Wyoming, who lost her place on the Republican ticket on account of her opposition to the movement to “stop the steal” and her leadership on the House Jan. 6 committee investigating Trump’s attempt to overturn the presidential election to keep himself in office. Cheney is, on every other issue of substance, with the right wing of the Republican Party. But she opposed the insurrection and accepted the results of the 2020 presidential election. It was, for Wyoming voters, a bridge too far.All of this is to say that we are already in a place where a substantial portion of the country (although much less than half) has aligned itself against the basic principles of American democracy in favor of Trump. And these 2020 deniers aren’t sitting still, either; as these election results show, they are actively working to undermine democracy for the next time Trump is on the ballot.This fact, alone, makes a mockery of the idea that the ultimate remedy for Trump is to beat him at the ballot box a second time, as if the same supporters who rejected the last election will change course in the face of another defeat. It also makes clear the other weight-bearing problem with the argument against holding Trump accountable, which is that it treats inaction as an apolitical and stability-enhancing move — something that preserves the status quo as opposed to action, which upends it.But that’s not true. Inaction is as much a political choice as action is, and far from preserving the status quo — or securing some level of social peace — it sets in stone a new world of total impunity for any sufficiently popular politician or member of the political elite.Now, it is true that political elites in this country are already immune to most meaningful consequences for corruption and lawbreaking. But showing forbearance and magnanimity toward Trump and his allies would take a difficult problem and make it irreparable. If a president can get away with an attempted coup (as well as abscond with classified documents), then there’s nothing he can’t do. He is, for all intents and purposes, above the law.Among skeptics of prosecution, there appears to be a belief that restraint would create a stable equilibrium between the two parties; that if Democrats decline to pursue Trump, then Republicans will return the favor when they win office again. But this is foolish to the point of delusion. We don’t even have to look to the recent history of Republican politicians using the tools of office to investigate their political opponents. We only have to look to the consequences of giving Trump (or any of his would-be successors) a grant of nearly unaccountable power. Why would he restrain himself in 2025 or beyond? Why wouldn’t he and his allies use the tools of state to target the opposition?The arguments against prosecuting Trump don’t just ignore or discount the current state of the Republican Party and the actually existing status quo in the United States, they also ignore the crucial fact that this country has experience with exactly this kind of surrender in the face of political criminality.National politics in the 1870s was consumed with the question of how much to respond to vigilante lawlessness, discrimination and political violence in the postwar South. Northern opponents of federal and congressional intervention made familiar arguments.If Republicans, The New York Times argued in 1874, “set aside the necessity of direct authority from the Constitution” to pursue their aims in the South and elsewhere, could they then “expect the Democrats, if they should gain the power, to let the Constitution prevent them from helping their ancient and present friends?”The better approach, The Times said in an earlier editorial, was to let time do its work. “The law has clothed the colored man with all the attributes of citizenship. It has secured him equality before the law, and invested him with the ballot.” But here, wrote the editors, “the province of law will end. All else must be left to the operation of causes more potent than law, and wholly beyond its reach.” His old oppressors in the South, they added, “rest their only hope of party success upon their ability to obtain his goodwill.”To act affirmatively would create unrest. Instead, the country should let politics and time do their work. The problems would resolve themselves, and Americans would enjoy a measure of social peace as a result.Of course, that is not what happened. In the face of lawlessness, inaction led to impunity, and impunity led to a successful movement to turn back the clock on progress as far as possible, by any means possible.Our experience, as Americans, tells us that there is a clear point at which we must act in the face of corruption, lawlessness and contempt for the very foundations of democratic society. The only way out is through. Fear of what Trump and his supports might do cannot and should not stand in the way of what we must do to secure the Constitution from all its enemies, foreign and domestic.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More