September 7, 2022
Today, in Texas, U.S. District Judge Reed O’Connor undercut a key part of the Affordable Care Act, more popularly known as Obamacare. That law assigned to three different government bodies the task of deciding what preventative treatments—cancer screenings, vaccines, and so on—health plans must cover.
In Braidwood Management v. Secretary of Health and Human Services Xavier Becerra, various business owners and individuals opposed buying insurance that covered some of those treatments, citing either economic or religious grounds. Four individuals wanted to be able to buy health insurance that did not include PrEP drugs to prevent HIV infection, contraception, the HPV vaccine, or screenings and counseling for STDs and drug use. The plaintiffs say they do not need such care and being forced to participate in plans that cover that care “violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”
Two Christian businesses have similar complaints, while one other business and one other individual simply say they don’t want or need this coverage. (One says his wife “‘is past her childbearing years,’ and neither he nor his family members ‘engage in the behaviors that makes [sic] this preventive treatment necessary.”)
O’Connor is famous for his decisions against the federal government. In a 2018 decision, he tried to get rid of the ACA altogether, but the Supreme Court upheld the law by a vote of 7–2. Today, in Braidwood Management v. Becerra, he decided that the members of one of the three panels deciding preventive treatments have been appointed unconstitutionally and upheld the argument that the PrEP requirement violated the plaintiffs’ religious rights. He reserved his ruling on how to fix these issues.
Also in the news today is Moore v. Harper, a North Carolina case about whether state legislatures alone have the power to set election rules even if those laws violate state constitutions. The case is currently before the Supreme Court, and friend of the court briefs are flowing in to make arguments either for Timothy Moore, speaker of the North Carolina House of Representatives, and the rest of the petitioners, or for defendant Rebecca Harper, a North Carolina voter, and the rest of the respondents.
The case comes from North Carolina, where the state supreme court rejected a dramatically partisan gerrymander by the Republican state legislature. Republicans say that the state court cannot stop the legislature’s carving up of the state because of the “independent state legislature doctrine.”
This is a new idea that caught on in 2015, when Republicans wanted to get rid of an independent redistricting commission in Arizona. It is based on the clause in the U.S. Constitution providing that “[t]he 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.”
Until now, states have interpreted “legislatures” to mean the state’s general lawmaking processes, which include shared power and checks and balances among the three branches of state government. Now a radical minority insists that a legislature is a legislature alone, unchecked by state courts or state constitutions that prohibit gerrymandering.
Democrats are actually far more popular than Republicans in most states, and they win elections that are statewide, like those for the U.S. Senate, governor, or U.S. president. But state legislatures control the way state districts are carved up, and after 2010, when Republicans made a concerted effort to take over state houses through a plan called Operation REDMAP, they gerrymandered the states they control to the point that Democratic voters cannot win the number of seats their votes reflect.
Biden narrowly won Georgia in 2020, for example, but a new districting map has given Republicans an advantage of at least 15 points for control of the state House of Representatives. Democrats will have to win the state by double digits in order to flip the House. That party power leads to extremist legislation, for once in power, legislators in safe seats can operate without fear of being voted out and can vote for measures that cater to their extremist base rather than to the wishes of the majority.
This partisan gerrymandering skews Congress as well. According to political scientist Jacob Grumbach of the University of Washington, North Carolina, for example, was actually a leader in expanding access to voting in the 1970s. But after Republicans captured the legislature in 2010, they changed election laws so dramatically that in 2018, Republicans won 49.3% of the vote and yet captured 77% (10 of 13) of the state’s seats in Congress.
Grumbach identifies 2010 as a crucial shift for democracy in a number of states. “It’s all about [Republican] control,” he says. “When the [Republican Party] wins your state, it will reduce democracy.” The changes don’t reflect major changes in the states themselves; rather, both the big money interests of the Republican Party and the electoral base, which is motivated by white identity politics, want to keep voting limited.
Those advancing the independent state legislature theory want to be able to gerrymander their states, but they also point to another clause of the Constitution. It says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” They advance the idea that the legislature can choose the state’s presidential electors regardless of which candidate the majority of the state’s voters choose.
This doctrine is, of course, what Trump and his allies pushed for to keep him in power in 2020: Republican state legislatures throwing out the will of the people and sending electors for Trump to Congress rather than the Biden electors the majority voted for.
Not surprisingly, those writing friend of the court briefs defending the independent state legislature doctrine are a who’s who of those who backed Trump’s effort to convince state officials to write slates of electors for Trump rather than Biden. They include America First Legal Foundation, which Democracy Docket identifies as connected to Trump advisor Stephen Miller and Trump’s chief of staff Mark Meadows; America’s Future (Trump’s national security advisor Michael Flynn); Claremont Institute’s Center for Constitutional Jurisprudence (John Eastman, author of the Eastman memo for overturning the 2020 election); Honest Elections Project (Leonard Leo); Public Interest Legal Foundation (Eastman and Trump lawyer Cleta Mitchell), Restoring Integrity and Trust in Elections (Trump’s attorney general Bill Barr), and so on.
In contrast, a conference consisting of the Supreme Court chief justices or chief judges of the courts of last resort of all 50 states, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands, urged the Supreme Court not to decide that the state legislatures could operate without any oversight. Relying on the long history of state court review of the legislatures’ decisions, including those over elections, it concluded that state courts had a traditional role to play in reviewing election laws under state constitutions.
Revered conservative judge J. Michael Luttig has been trying for months to sound the alarm that the independent state legislature doctrine is a blueprint for Republicans to steal the 2024 election. In April, before the court agreed to take on the Moore v. Harper case, he wrote: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine…and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”
And yet in March, when the Supreme Court let the North Carolina Supreme Court’s decision against the radical map stay in place for 2022, justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh indicated they are open to the idea that state courts have no role in overseeing the rules for federal elections.
In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations, slashing power from the federal government, where Congress represents the majority, and returning it to states, where a Republican minority can impose its will. Thanks to the skewing of our electoral system, those states are now trying to take control of our federal government permanently.