The Constitutional Convention considered popular election of the president. But that wouldn’t have allowed white southerners to augment their voting power by the number of people they enslaved because enslaved people weren’t allowed to vote. So, for much of the Convention, the President was to be chosen by the national legislature, by Congress, selected with the three-fifths clause to augment the voting power of white southerners by three-fifths of the people they enslaved. When they switched to a national presidential election, those numbers were written into the electoral college – so slave power ruled the country and the South dominated the presidency until the election of Abraham Lincoln, the Civil War and the waves of immigration to Northern states which helped the Union overwhelm the Confederacy and increased northern voting power.
Primaries later took over the job of deciding candidates, and popular elections long since superceded legislative selection of electors – so those tasks were taken out of the hands of the parties, political bosses and self-interested politicians.
Now, Alito, Thomas and Gorsuch want to take away your right to vote for president. They have already helped block federal courts from requiring fairness in legislative districting. That empowers self-dealing. Now they also want to take away the ability of state courts to require fair districting under state constitutions, enlarging politicians’ power of electoral self-dealing despite state constitutional restraints. And they’ve bought into a theory that makes clear they want to give those gerrymandered legislatures, organized to support existing state power holders, the power to choose the state’s electors too, giving state legislatures the power to overrule electors, popular elections and primaries by misusing federal constitutional language to overrule all constraints in state constitutional law.
That’s self-dealing all the way to the White House. State legislators already use gerrymandering to put themselves back into power regardless of the voters’ wishes. Alito, Thomas and Gorsuch want to let those self-empowered legislators amplify their power over the voters by choosing the president.
They just need two votes from Roberts, Kavanaugh or Barrett. Kavanaugh dissented from a decision to take one case that could decide that issue but he was silent on the underlying theory, saying only that this wasn’t the right case but the Court would eventually have to deal with it. The other five justices were silent, typical on votes to grant a hearing.
References to the Legislature in the elections clauses of the Constitution have always been understood to refer to the entirety of the state legal process with state constitutional constraints on the state legislatures enforced by state courts just as the reference to Congress in the First Amendment has always been understood to restrain the President and to be subject to constitutional constraints by the Court. It’s that understanding that Alito, Thomas and Gorsuch want to throw out.
The moral of the story: this Court needs to be stopped, revised, replaced, or packed before it can complete its destruction of American democracy. The most effective way to do that is to plan to vote, see that your friends do too, and reach out to friends in swing districts and states.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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