Policy: What Does the 2022 Election Mean?
Independent State Legislature Theory could change elections as we know them
The November elections have come and gone. While there will be a runoff in Georgia’s race between Senator Rev. Raphael Warnock and Herschel Walker, Democrats will continue to control the United States Senate until 2025, barring unforeseen vacancies.
The results in the House of Representatives - unexpectedly - could go either way. My current projection based on available data is 219 +/- 3 seats for the Republicans: a party needs 218 votes for a majority in the House. With the margin that close in both chambers, gridlock is the most likely outcome, and major initiatives and spending packages are going to require a bipartisan consensus.
Across the country, a “red wave” failed to materialize, President Joe Biden overcame increasing skepticism of his political prowess, and Democrats won back multiple state houses. Republicans, however, had a lot to celebrate in Ohio and Florida, with both states losing their “swing” status for the foreseeable future. Governor Ron DeSantis’ overwhelming reelection saw him winning historic Democratic strongholds like Miami-Dade and Palm Beach Counties, and he is the sole Republican positioned to challenge Donald Trump in the 2024 Republican Primary.
The immediate policy effect is going to be an increasing gulf between civil rights in red states and blue states. States with Democratic legislatures and governors will work to pass laws that protect access to abortion care and codify LGBTQ rights. States with Republican Governors and legislative supermajorities will use the advantage of being two years away from an election to pass legislation that restricts or outlaws abortion, attacks trans youth and adults, and uses school curriculum to engage in historical revisionism.
However, the most important results of the night may have come from North Carolina.
Senator-elect Ted Budd’s win over former NC Supreme Court Chief Justice Cheri Beasley meant the outcome of the U.S. Senate continued to be in doubt until late Saturday, and it also means Democrats won’t have the votes to overcome the contrarian votes of conservative Democratic Senators Joe Manchin and Kyrsten Sinema.
The lack of support for Beasley from national Democrats was felt down the ballot as Republicans won a supermajority in the State Senate and are one seat away from a supermajority in the State House. If the smile on N.C. Speaker of the House Tim Moore’s face during a press conference this week is any indication, the rumors that a conservative Democrat (or two) may switch parties could be true. With supermajorities in both chambers, General Assembly Republicans will be able to override Governor Roy Cooper’s veto.
The fate of one of Gov. Cooper’s key priorities, Medicaid expansion, is also on the line. While the General Assembly was unable to reconcile competing bills this year, the Republican leaders of both chambers insist they’re working to get the job done in 2023.
In the race for the Supreme Court of North Carolina, Republicans won both seats on the ballot, moving the court from a 4-3 Democratic majority to a 5-2 Republican majority. Would you be surprised if I told you this was arguably the most important election on any ballot across the country?
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In terms of elections, the court will be the final arbiter on redistricting, both at the state and federal level. That means Republicans in the North Carolina General Assembly could draw a map designed to elect 3 Democrats and 11 Republicans to Congress, giving Republicans an 8 seat margin in their efforts to take back Congress.
Additionally, there will be no roadblocks to a gerrymander of state legislative districts drawn to create a permanent Republican supermajority. Ergo, if North Carolina Republicans can’t pass their legislative agenda over the next two years, they’ll have a much easier go of it when the General Assembly convenes in 2025.
Independent State Legislature Theory Threatens the Foundations of American Democracy
A Republican state Supreme Court may also give their approval to an idea that challenges the very foundations of American democracy: Independent State Legislature Theory. According to this theory, state legislatures have the sole authority to hold and regulate elections, taking away any oversight from state courts or the Governor. North Carolina has always had a strong legislative branch, and the Governor only gained the veto in my lifetime, but this theory would fundamentally undermine the idea of separation of powers.
The Brennan Center has a good explainer of the origins of this theory:
Following the disputed 2000 election, Chief Justice William Rehnquist wrote a concurring opinion in Bush v. Gore proposing an embryonic version of the independent state legislature theory…
Then, after the 2020 election, President Trump and his allies used the independent state legislature theory as part of their effort to overturn the results. For a third time, the Supreme Court declined to adopt the theory. But three sitting justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch —endorsed it.
North Carolina’s legislative leaders have gone as far as to take Independent State Legislature Theory to the Supreme Court of the United States in Moore v. Harper, and the Supreme Court has agreed to hear the case. Should North Carolina’s top court affirm Independent State Legislature Theory as it reinstates Republican gerrymanders, expect proponents of this theory to use North Carolina precedent as evidence in court.
If the U.S. Supreme Court accepts the idea of a unitary legislature, expect boundless federal lawsuits, electoral chaos, and a deepening chasm between red and blue states that becomes impossible to bridge. On the other hand, multiple Democratic wins in state legislatures on Tuesday night may convince our increasingly partisan Supreme Court that Independent State Legislature Theory would empower too many Democratic legislatures to fight more Republican gerrymanders with more Democratic gerrymanders.
Whatever the Court decides, it will be a landmark case for American democracy. If that isn’t the biggest possible policy outcome from this election, I don’t know what is.