What would be the global ramifications of America going full fascist after the midterms, and entrenching severely anti-democratic outcomes by notionally democratic means?
We might be about to find out.
The results of next week’s midterms could represent the endgame of a frankly fucking terrifying strategy carefully implemented by the likes of Mitch McConnell as he let the world be distracted by the performance of a grifting gimp as President.
Punters woke up belatedly to the work of the Federalist Society when Trump turbo-charged the appointments of judges across all levels of the courts culminating in the ascension to the Supreme Court of a man whose seat had been stolen from the now Attorney General, another credibly accused of attempted rape with a curiously opaque financial history and a Handmaid from the People of Praise. All three carried the mandatory membership card of the Federalist Society.
After its formation in 1982 as a high-falutin’ debating forum at eminent Law Schools, the Federalist Society developed into a production line for conservative judges, with its Executive Vice President Leonard “the Judge Whisperer” Leo the key adviser to McConnell and Trump on judicial appointments. Not only must Federalist aspiring judges subscribe to “originalism”, a legal philosophy that demands cases be decided solely by interpreting how the US Constitution was understood at the time of its drafting by Founding Fathers who believed women to be second-class citizens and overwhelmingly owned slaves, it seems they should also generally show allegiance to a white supremacist, Christian theocratic state fuelled by dark money and darker politics. Once proposed for office by his political allies, Leo oversaw massive PR campaigns to legitimise controversial and/or scandalous nominees.
After the Senate anointed the Supreme Court’s first charismatic Christian Justice, despite questions as to how Amy Coney Barrett’s fervid commitment to a rabidly patriarchal religion may impact her jurisprudence, the Court’s 6:3 conservative majority got straight to work. In June 2021 they decided Americans for Prosperity Foundation v. Bonta, expanding on Citizens United, the infamous 2010 decision that allowed corporations to contribute unlimited funds to elections but at least required disclosure of all donations, to allow anonymous free-for-alls. And in a trifecta of judicial activism in June of this year, the Court first struck down a 111 year old law in New York State Rifle & Pistol Association so that New Yorkers no longer need to demonstrate a particular need to get a licence to carry a gun in public, paving the way for more guns to be carried in America’s largest cities, then gleefully seized the Right’s Holy Grail of overturning Roe v Wade (1973) with its decision in Dobbs v Jackson Women’s Health Organization that removed the right to abortion by “rescinding an individual right in its entirety and conferring it on the State”, which the Dobbs dissenting judgement noted to be “an action the Court takes for the first time in history”, and, as its piece de resistance, agreed to hear Moore v Harper.
And it is Moore v Harper that could prove the undoing of US democracy.
After Trump’s resounding defeat in the 2020 election, when he and his henchmen and women roamed the country in a desperate campaign to keep hold of the White House, it was principled Republican men and women in the local legislatures who foiled them. The likes of Georgian secretary of state Brad Raffensperger was instructed to “find” another 11,780 votes to deliver Georgia to Trump. Arizona Governor Doug Ducey and his splendidly named House Speaker Rusty Bowers were pressured to hold a vote in the state house to decertify their state’s electors. Michigan Senate Majority Leader Mike Shirkey, House Speaker Lee Chatfield and four of their Republican state colleagues were dragged to the White House to be strong-armed into withholding certification of the state’s electoral slate. They all refused. The January 6 Congressional Committee heard evidence that across November and December Trump and his team met with and pressured representatives in all the key swing states in their mercifully futile efforts to overturn the will of the American people.
But in this year’s midterms, 199 of the 552 Republican nominees running for office are Election Deniers, having either stated publicly they believe the 2020 election was stolen or acted in some way to overturn the results. Victories for these nominees this November could – are designed to – cause chaos in 2024. Unlike those who upheld their duty and America’s democracy in 2020, in 2024 an election-denying secretary of state might well assert a legitimate Democratic victory in a key state is fraudulent. A State Governor might submit electoral votes that defy the will of the people.
Bad enough would be the kind of chaotic political stand-off of perhaps America’s most contentious election in 1876, when Florida, Louisiana and South Carolina produced different sets of electors and Congress was forced to create an Electoral Commission to break the impasse. If the Democrats demonstrably win the popular vote in a swing state and an election-denying Republican official refuses to recognise the result, the Republican official is acting in breach of their duty and the law. A rational, peaceful resolution may prove elusive in America’s polarised polity but the official’s bad faith behaviour remains unquestionably illegitimate.
But if the Supreme Court finds for the petitioners in Moore v Harper, the state legislatures will have irrevocable power to determine the composition of the Electoral College slates with no obligation to heed the popular vote.
They could legally disenfranchise the people.
America could fall victim to a legal coup.
Moore v Harper stems from the North Carolina Supreme Court’s decision in February 2022 to strike down a gerrymandered Congressional Map drawn up by the Republican-controlled state legislature. Wise to the fact that a fair map would result in GOP defeat, the initial map was so egregiously drawn that an even split of the popular vote would have delivered the Republicans 10 of the state’s 14 congressional seats. The Court baulked and found the map violated North Carolina’s Constitution. Undeterred, the state legislature/s second effort produced an equally skewed map leading the Court to appoint an independent arbiter to create a fair map. Two Republican legislators have now asked the Supreme Court to step in and reinstate their gerrymandered map, relying on an utterly untenable and entirely discredited reading of the American Constitution’s Election Clause known as the independent state legislature theory (ISL).
Opposed by a heartening array of lawyers, current and former judicial officers and legal academics from both the liberal and conservative side of politics, ISL contends that state legislatures have absolute power to regulate Federal elections unchecked by any other state-based instruments or actors such as state Constitutional provisions, courts or even a Governor’s veto. Oral arguments in Harper v Moore will be held on December 7 with a decision expected by July 2023: if the archly ideological Supreme Court finds for the petitioners, voters across the country will have no remedy against partisan decisions by state legislatures that ignore their ballots entirely.
Despite its rhetoric, the arithmetic behind America’s democracy has always seemed a little spurious. The electoral college system patently favours the smaller states and in the current evenly split Senate, the 50 Democrat Senators represent 186 million Americans compared to the 50 Republican senators’ 145 million.
But legally ignoring the expressed will of the American people is another thing entirely.
Of course, just because the Supreme Court has agreed to hear Moore v Harper doesn’t mean they’ll find for the petitioners. It takes only 4 private votes for the Court to take a case for review whereas 5 public votes are required for a decision. The respondents are supported by an unprecedented number of amici of all political persuasions including the Conference of State Justices representing all 50 state supreme court justices. Prominent Republican election lawyer Ben Ginsberg said ISL, if adopted, would result in a “toxic brew of uncertainty, distrust, partisanship and unchecked power” that could lead to a number of election “nightmare scenarios.” It would overturn the way US elections have worked for over 200 years.
But with the current Court a creation of the Federalist Society and self-evidently prepared to advance the Society’s partisan, retrograde agenda, and Justices Samuel Alito, Clarence Thomas and Neil Gorusch having previously voiced support for ISL in obiter, and Brett Kavanaugh suggesting there were “strong arguments” on both sides of the argument, a bet on this Court producing a sane decision is not one I’d take.
So whilst we’re fascinated by the sheer chutzpah of Georgia’s Herschel Walker, the former NFL star turned Republican Senate candidate who has more secret children than Boris Johnson and who voiced support for a blanket ban on abortion despite forking out for multiple abortions and associated get-well cards for women he’d impregnated; whilst we’re transfixed by the awkward contrast between Oprah’s smooth Dr Oz and the still-recovering John Fetterman, the Pennsylvanian Lieutenant General whose pugnacious public pushback to Trumpland spivs broke the tedium of waiting for paralysed networks to call the Presidential election but whose Senate campaign currently teeters thanks to a devastatingly ill-timed stroke; and as we cross our fingers for the Senate’s only Latina representative, Nevada’s Catherine Cortez Masto, in her race against political scion and former wastrel described by the Las Vegas Sun as the “Nevada version of Rudi Guiliani” Adam Laxalt; and we wonder how it is that previously self-described redneck but thoughtful author J.D. Vance transmogrified so rapidly into a rabid Trump fanatic; keep your eyes on the state ballots, for it is there that the ultimate danger lies.
Former local news anchor Kali Lake, Gubernatorial candidate in Arizona, and her Secretary of State nominee and participant in the January 6 Capitol riots Mark Finchem. Gab enthusiast and amateur actor in antisemitic films Gubernatorial candidate Doug Mastriano of Pennsylvania. Tudor Dixon who, when not campaigning for Governor of Michigan, is cracking jokes about the kidnapping plot against the incumbent Democrat Gretchen Whitmer and is running alongside Secretary of State candidate Kristina Karamo who believes abortions are a front for the body-harvesting industry. The frontrunner to be Secretary of State of Nevada, Jim Marchant, has ties to QAnon and wants to “put his finger on the scale” in the 2024 elections. Accused rapist and candidate for Governor of Minnesota Eric Greitens, who resigned from his previous stint as Governor when impeachment proceedings were brought against him. These men and women are all fervent Election Deniers and have as the key plank of their campaign platforms a commitment to do any and everything in their power to ensure a Republican – preferably Trump – victory in 2024.
All have a very good chance of winning their contests on Tuesday.
The success of both the Federalist Society’s careful long-term strategies and the populist opportunism of the MAGA campaigns, each drenched in the same dark money, leaves America in its most precarious state since the Civil War. Trepidation doesn’t begin to describe how friends and allies should be feeling as we watch impotently from afar.
