A little-known and, until recently, marginal constitutional theory has become a serious attempt to destroy democracy. And Utah’s political leaders are, of course, all in.
It will be up to the people of Utah to stand up and tell their elected leaders they want no part of it.
It is called the “independent state legislature theory.” It is the crux of a case from North Carolina now before the U.S. Supreme Court, and it presents an opportunity for the same justices who have already done so much damage to women’s autonomy and the separation of church and state to hand Republicans a chance to succeed in stealing an election after their last attempt — on Jan. 6, 2021 — failed.
In North Carolina, the Republican-controlled Legislature came up with a map of congressional districts that gave GOP candidates a decided advantage in future elections. It was egregious enough that the state’s own Supreme Court threw it out. The North Carolina Legislature has now gone to the U.S. Supreme Court, hoping to get its own state’s court overruled and their gerrymandered map put back in place.
Sound familiar?
In Utah, the Republican-controlled Legislature came up with a map of congressional districts that gave the GOP an overwhelming advantage in future elections. The League of Woman Voters, Mormon Women for Ethical Government and others rightly offended have brought a lawsuit in state court seeking to have the Legislature’s map tossed and proper attention given to the nonpartisan design from the state’s Independent Redistricting Commission — a body created by the voters in a 2018 referendum and subsequently neutered by the Legislature.
The Legislature and the office of Attorney General Sean Reyes have asked the Utah courts to stand down while the North Carolina case runs its course. If the Tarheel Legislature gets what it wants from the U.S. Supreme Court, it will mean that, in drawing voting districts and otherwise operating elections, the acts of each state’s legislature are final and not subject to any executive, judicial or constitutional oversight.
In other words, the American system of constitutional checks and balances, a design generally admired by American conservatives, would be destroyed at its most crucial point, the exercise of democracy.
And that would apparently suit Reyes and the Legislature just fine.
It would also encourage more of the wild snipe hunts that occupied Utah’s Sen. Mike Lee’s 14-hour days leading up to the insurrection of Jan. 6 — seeking “alternative slates of electors” that legislatures might submit as a way to ignore the will of the people and restore the defeated Donald Trump to the White House.
The independent legislature theory rests on a new reading of Article I, Section 4 of the Constitution of the United States, which states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations...”
For just about ever, that has been read to mean that states make their own rules for electing members of Congress. Unless Congress itself intervenes, as it has with such things as declaring how many House members each state gets, when Congress assembles and when elections are held.
The new theory in this case is that, “by the Legislature thereof,” means that only each state’s legislature gets to make rules and decisions when it comes to elections. That there is no role for the governor, attorney general, the state’s own courts, federal courts or the people overall.
This is a horrible idea. Republicans across the nation are working to make it harder to vote and easier for each state’s lawmakers, once they win an election that most voters pay little attention to, to amass all power to themselves with no fear of popular or legal oversight.
Nothing else the Legislature does is so free of oversight or balance. Making the core of democracy, the conduct of elections, beholden only to the will and whim of members of the Legislature would put us on a short road to being governed by an all-powerful junta.
The Utah Legislature and its attorney general are wrong to hitch their wagon to this constitutional black hole. They should resist the temptation to piggy-back on North Carolina’s anti-democratic lawsuit and show the trust Utahns put in their elected officials is not horribly misplaced.
Congress could step in and rescue us from our own state lawmakers. If it doesn’t, and soon, the people of Utah should make it clear to lawmakers, to the governor and the attorney general that we want them to abandon this bald grab for power.
Unless we don’t really want our votes to count for anything.