Supreme Court might put Florida lawmakers, not voters, in position to decide elections

Six of the current members of the Supreme Court are, or have been, members of the Federalist Society for Law and Public Policy Studies. Members of this organization describe themselves as conservatives and libertarians.

They are sometimes referred to as textualists because they believe it is the duty of the judiciary “to say what the law is, not what it should be.” They think judges should interpret the U.S. Constitution based on the actual words in the text and what they meant at the time it was written. They believe judges should not consider issues like the intention of the law when it was passed, the problem it was intended to address nor significant questions of justice.

We have seen the decisions they issued in this recent term were consistent with this judicial philosophy. We expect the 2022-23 session to include more high-profile cases.

One case they have agreed to hear has major implications for our democratic way of life.

The North Carolina Legislature proposed a congressional map that was sent to the North Carolina Supreme Court for a ruling due to an allegation of political gerrymandering.  The North Carolina Legislature approached the U.S. Supreme Court in February in hopes of protecting its map, but the court refused to accept the case.

After the North Carolina Supreme Court overturned the map, the Legislature submitted an appeal to the U.S. Supreme Court. The case, Moore v. Harper, has now been accepted and will be heard during the next term. The basis of the appeal is the “independent state legislature theory,” which is based on a literal interpretation of the elections clause of the U.S. Constitution.

Article 1 states, “… The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A ruling in favor of the appeal would grant state legislatures complete authority over all voting related decisions affecting congressional candidates. This means state supreme courts would have no power to enforce state laws or compliance with state constitutions in any decision the legislature makes about congressional elections.

Many legal scholars, including the dean of the University of Illinois College of Law and the co-director of Chicago-Kent College of Law's Institute on the U.S. Supreme Court, are warning that the high court's endorsement of independent state legislature theory could have severe consequences for congressional and presidential elections.

Depending on how broadly the Supreme Court rules, support for the theory could be seen as an invitation to state legislatures to set new election rules that take power away from voters when picking electors for the Electoral College and to make state lawmakers, not courts, the judges in any disputes after an election. Article 2 of the Constitution delegates the selection of Electors to state legislatures. No guidelines are provided on how they are to choose the Electors, who are the only ones who actually vote for the president.

Although Moore v. Harper is about a congressional election issue, the current court has demonstrated it does not feel limited to ruling on the specifics of the case they have agreed to hear. The legal question in the Dobbs v. Jackson case was the legality of a ban on abortion after 15 weeks of gestation.

Instead of addressing the case, the justices ruled on a question they were not asked and reversed Roe v. Wade. So as incredible as we like to think it is, after what we have seen this term, it does not seem impossible that this supermajority of textualists would be willing to upend our entire voting system. Three justices have already indicated support for the independent state legislation theory.

Think about this: We are facing the real possibility that control of federal elections will be delegated directly and exclusively to Florida legislators. During the 2022 election, we could be electing legislators who do not have to follow state laws nor comply with the Florida Constitution when it comes to federal elections. It is even possible they could be responsible for independently controlling Florida’s 28 electoral votes for president.

Think about this: Who do you trust with total control over federal elections? If your vote for president is going to be ignored who do you want voting on your behalf? Think about it. Decide. Then get out and vote!

Diane Dimperio lives in Gainesville.

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This article originally appeared on The Gainesville Sun: Diane Dimperio: Florida lawmakers, not voters, might decide elections