Are the days of American Democracy numbered?

As we celebrated our freedom yesterday, we also pondered whether America is America without democracy?

We weren’t the only ones. Senator Mitt Romney also used the 4th of July to sound the alarm on American Democracy. In an opinion piece in The Atlantic, Romney argues that America is in the midst of a “national malady of denial, deceit, and distrust.” And that, “A return of Donald Trump would feed the sickness, probably rendering it incurable.”

Indeed, at the same time former President Trump is eyeing a potential bid to return to the White House, the U.S. Supreme Court has announced it will take up a case concerning “Independent Legislature Theory,” a theory of election administration which could pave the way for state legislatures to determine the outcomes of elections without regard for the will of their voters -or even for their governors or state courts.

If that sounds familiar, it’s because it should. The Independent Legislature Theory was the basis for Trump Attorney John Eastman’s “fake electors” plot to overturn the 2020 Presidential election.

And while that particular plot didn’t work, according to voting rights attorney Marc Elias in a quote made to The Washington Post, “The way I view it, Republicans tried to subvert the 2020 election, but were clumsy and they are now learning from that where the pressure points and vulnerabilities are in our election systems, and refining their tactics.”

Far Reaching Implications

In its simplest form, the Independent Legislature Theory asserts itself as a literal reading of the US Constitution’s elections clause, which reads that “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

Thus, state legislatures alone have power over elections-related activities. 

But, according to The Post, “in its most far-reaching interpretation, it could cut governors and state courts out of the decision-making process on election laws while giving state lawmakers free rein to change rules to favor their own party. The impact could extend to presidential elections in 2024 and beyond, experts say, making it easier for a legislature to disregard the will of its state’s citizens.”

The actual case before the Supreme Court concerns North Carolina, where the Republican Legislature is appealing a ruling by the state supreme court which struck down their heavily gerrymandered maps as unconstitutional.

But the ramifications are likely to be national. According to NPR’s Hansi Lo Wang, “this case could have major implications for the 2024 presidential election because some states with Republican-controlled legislatures may see the Supreme Court’s potential support for the theory as an invitation to set new election rules that take power away from voters when picking electors for the next Electoral College.”

Meanwhile, Back at Mar-a-Lago

Of course, the Supreme Court’s recent extremist lurch makes it all the more concerning that they’ll be taking up elections next. But in the meantime, Election Liar #1 is reasserting himself into the 2024 conversation, and earlier than expected, evidently believing that announcing a Presidential bid will distract Americans from the bad press he’s receiving from the January 6 Commission.

But according to the Times, “The former president’s team remains divided over whether he should even run again. Those opposed to a third White House bid have expressed concerns ranging from doubts about Mr. Trump’s remaining political potency to questions about whether he can articulate a clear rationale for running and avoid a repeat of 2020.”

Further, there are some in Republican circles who believe that Mr. Trump is eyeing an early entry into the 2024 Presidential race explicitly to deny oxygen to his potential Republican challengers. One such potential challenger is Florida Governor Ron DeSantis, whoVanity Fair recently reported may get to watch the Trump announcement from his front porch. (Trump is apparently exploring venues for his declaration rally as near to the Tallahassee Governor’s Mansion as he can get.)

Whether Trump will run in 2024 or not has long felt like a foregone conclusion. So DeSantis had probably better get his popcorn ready.

Whether we’ll still be living in a Democracy anymore by 2024 though is likelier than ever to depend on the outcome of the 2022 midterms -and quite possibly at the state legislative candidate level. So the pressure, it seems, is on.