No, Supreme Court case on election rules is not a ‘threat to democracy’

“Threat to democracy,” like “racist” before it, has become the preferred smear to delegitimize one side of a reasonable political debate.

The tactic is diabolical – and outrageously effective. Those who level it don’t have to engage with the substance of a debate. They need only assert that their adversary pursues an end so horrendous that any decent American must reject the argument as a matter of patriotic duty.

One reason the tactic is so effective is that it’s grounded in a kernel of truth. Americans really did enforce a brutal order on the basis of race. Rioters really did storm the Capitol and disrupt the peaceful transfer of power.

That’s why the tactic is so diabolical: It seizes fear from a real crisis and transplants it on an invented one. Sooner or later, nearly all proposals from one party get labeled “racist” or “threats to democracy.” The tactic drains those labels of meaning and freezes all progress towards consensus.

Consider an example. It’s fashionable right now to assert the next great threat to American democracy is Moore v. Harper, a case the U.S. Supreme Court will hear next year.

The case, which centers on North Carolina, questions whether a state’s judicial or legislative branch has primacy in writing laws that govern federal elections.

Berkeley professor Robert Reich’s histrionics illustrate the general rhetoric surrounding the case. He wrote it “could let extremist state legislatures pick the next president without you.”

But the case has absolutely nothing to do with electoral votes for president. Rather than some secret plot to steal the 2024 election, the case is most appropriately viewed as yet another battle in a years-long separation of powers struggle between the legislature and judiciary.

Legislators argue that the U.S. Constitution gives the state legislature, not state courts, the power to set rules for federal elections, with Congress and federal courts acting as a check, a theory sometimes called the “independent state legislature doctrine.”

I don’t know if that’s the proper reading of the Constitution, which delegates that authority “to each state by the legislature thereof.” But it’s surely a reasonable question, especially given the very recent history of state courts claiming more and more power for themselves.

In 2020, a state judge approved a “settlement” between the Democratic Party-controlled State Board of Elections and the national Democratic Party’s top election lawyer to trash the laws governing the election that the legislature passed months earlier and replace them with different laws – after voting had already started.

In 2021, a state court claimed for itself the power to draw legislative districts and appointed three former judges to lead the effort, one of whom went on to endorse a candidate running for Congress under the new maps.

Last month, the state Supreme Court all but invalidated the votes of North Carolinians to amend their own constitution to require photo voter ID.

Should the judicial branch rewrite election laws passed by bipartisan supermajorities? Is it okay for judges to throw out amendments that the people of North Carolina voted to add to their own constitution? How can it be that the only way to abate the “threat to democracy” is to replace a partisan vote in the state legislature with a partisan vote at the state supreme court?

Those pesky questions are of little consequence when the real debate is whether or not we will live in a fascist state by the end of the decade.

Do you see the problem?

Rather than bury the other side’s reasonable position by retreating to “’semi-fascism” hysteria, a healthier response would offer sound arguments as to why elected judges, rather than elected legislators, should make these decisions.

Instead, we get hyperbole about a secret plot to steal the 2024 election from people who sound awfully similar to the very conspiracists they loathe.

This story was originally published September 19, 2022 at 9:30 AM.