Bush v. Gore 2001 and the oringes of the “Independent State Legislature Doctrine”

Would it surprise anyone to learn that in Florida prior to the 2000 election, the one that the Supreme Court declared Bush/Cheney had won by 537 votes in Florida once they ordered vote recounting stopped, 100,000 voters had been purged from the Florida voter rolls? Shades of candidate Brian Kemp using the power of his office to purge more Georgia voters than that when he narrowly defeated Stacey Abrams in Georgia. Voter purges alone will not allow the radical GOP to keep winning close elections in the face of “majoritarian tyranny”.

The party that represents less than half the country needs a hard hitting legal theory that sounds damned constitutional, or at least is good enough for a Federalist Society 6-3 win on Biden’s high court, made the law of the land in a narrowly tailored, unappealable summary opinion by Boof Kavanaugh or fellow nonpartisan, non-ideological constitutional scholar Amy Coney Barrett. That’s where the so-called Independent State Legislature Doctrine comes in.

The Independent State Legislature Doctrine allows a minority party that controls a state by permissible partisan gerrymandering (6-3 says you have to prove the gerrymandering is intentionally racist to successfully challenge it, nothing wrong with partisan officials using their power to benefit their party) to overrule the will of the rest of the state’s voters, just like the Orange Polyp kept demanding after losing in 2020.

The great Jane Mayer traces the origins of this controversial theory from the unprecedented, one-off 5-4 party-line 2001 Supreme Court decision that gave the presidency to a man who’d lost the popular vote:

Like many conservatives of her generation, Cleta Mitchell was galvanized by the disputed 2000 election, in which George W. Bush and Al Gore battled for weeks over the outcome in Florida. She repeatedly spoke out on behalf of Bush, who won the state by only five hundred and thirty-seven votes. A dispute over recounts ended up at the Supreme Court.

Few people noticed at the time, but in that case, Bush v. Gore, Chief Justice William Rehnquist, along with Antonin Scalia and Clarence Thomas, hinted at a radical reading of the Constitution that, two decades later, undergirds many of the court challenges on behalf of Trump. In a concurring opinion, the Justices argued that state legislatures have the plenary power to run elections and can even pass laws giving themselves the right to appoint electors. Today, the so-called Independent Legislature Doctrine has informed Trump and the right’s attempts to use Republican-dominated state legislatures to overrule the popular will. Nathaniel Persily, an election-law expert at Stanford, told me, “It’s giving intellectual respectability to an otherwise insane, anti-democratic argument.”

Barack Obama’s election in 2008 made plain that the voting-rights wars were fueled, in no small part, by racial animus. Bigoted conspiracists, including Trump, spent years trying to undermine the result by falsely claiming that Obama wasn’t born in America. Birtherism, which attempted to undercut a landmark election in which the turnout rate among Black voters nearly matched that of whites, was a progenitor of the Big Lie. As Penda Hair, a founder of the Advancement Project, a progressive voting-rights advocacy group, told me, conservatives were looking at Obama’s victory “and saying, ‘We’ve got to clamp things down’—they’d always tried to suppress the Black vote, but it was then that they came up with new schemes.” . . .

. . . In 2013, the Supreme Court struck down a key section of the Voting Rights Act, eliminating the Justice Department’s power to screen proposed changes to election procedures in states with discriminatory histories, one of which was Arizona. Terry Goddard, a former Arizona attorney general and a Democrat, told me that “the state has a history of voter suppression, especially against Native Americans.” Before Rehnquist became a Supreme Court Justice, in 1971, he lived in Arizona, where he was accused of administering literacy tests to voters of color. In the mid-two-thousands, Goddard recalled, Republican leaders erected many barriers aimed at deterring Latino voters, some of which the courts struck down. But the 2013 Supreme Court ruling initiated a new era of election manipulation.


And note the raft of voter suppression laws that were ready to become law in Republican controlled states immediately after John Roberts pulled that legally and ethically shaky yet unappealable Shelby County opinion out of his learned, corporate lawyer ass. Although he pretended Congress hadn’t studied a mass of recent data in many hearings before reauthorizing the Voting Rights Act with stunning bipartisan numbers [1], 98-0 in the Senate, and the law was enthusiastically signed by George Dubya Bush, Roberts rested his decision on the crackpot idea that racism is no longer a factor in American voting since we had elected a what used to be called mulatto as president (was not Obama as “white” as he was Black? anywhere but in a racist society, the People rest).

the justices [three of the 5-4 majority in Bush v. Gore] argued that state legislatures have the plenary power to run elections and can even pass laws giving themselves the right to appoint electors

This is a quoted by Jennifer Rubin in her excellent recent op-ed in the Washington Post:

The benefit of technical arguments under the independent state legislature doctrine to subvert election results is that they have an aura of respectability and expertise. Lawyers in fine suits making legalistic arguments are much more appealing than desperate lawyers making unsubstantiated claims of ballot box stuffing and other chicanery. The doctrine would be a strong vehicle for a bloodless coup.

The theory reminds me of the one that says the vice-president, a candidate for re-election who has seemingly lost his bid, has the power to overrule the states trying to certify vote tallies that go against him. A good theory, I suppose, if you have a cushioned extremist majority on an ideologically packed Supreme Court, tens of millions of angry, credulous adrenalized citizens addicted to the incendiary outpourings of right wing mass media, a Department of Justice too high-minded to prosecute a powerful scofflaw demagogue [2] who continues to spray gasoline on the many fires he set, and, in a pinch, a violent, well-funded mob ready to riot again any time they are called on to stand by. And when you’re a huge star, and the organizer, promoter and funder of a riot in the Capitol to forcibly stop the peaceful transfer of power, they let you do, it’s true, they let you do it!


Only when you read Ruth Bader Ginsburg’s dissent in Shelby County v. Holder (another magnificent piece of clear, precise legal and moral logic) do you realize the audacity of the Roberts majority’s legal sleight of hand. You learn that the reauthorization of the Voting Rights Act was passed, after 21 hearings and 15,000 pages of evidence of ongoing discrimination in the states under preclearance, by a vote of 390-33 in the House and, after further debate, 98 to 0 in the Senate. Reading the John Roberts decision you’d have no reason to suspect that President George W. Bush signed the reauthorization into law a week later, as Ginsburg writes:

recognizing the need for “further work . . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 


This particular angry, boastful, lying Orange madman did not invent any of the shit he practices, and while he certainly wasn’t their first choice, radical right billionaires have found their audacious front man to be very useful for their larger purpose, gaming democracy to protect the privileges of vast inherited wealth in perpetuity. This Orange Polyp, since he is a malignant narcissist and an amoral opportunist, is their go to guy in the war of the few to keep hold of everything.

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