The Washington PostDemocracy Dies in Darkness

The new Supreme Court case that imperils American democracy

Giving legislatures the power to overturn the will of voters risks the government’s legitimacy

Security fencing at the Supreme Court in Washington. (Bloomberg/Photographer: Bloomberg/Bloomber)
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On the last day of June, the Supreme Court announced that it would take up Moore v. Harper this fall, a case stemming from a ruling by the North Carolina Supreme Court that its state constitution prohibits extreme gerrymandering. In Harper, Republican legislative leaders asked the Supreme Court to rule that it is unconstitutional for state courts and constitutions to protect federal voting rights. In their view, only state legislatures should be able to determine election rules — absent intervention by Congress. By this logic, state legislatures, under the “independent state legislature theory,” could reject presidential election results they do not like.

Legal commentators have sounded the alarm about the dire consequences for American democracy, already under attack, if the right-wing justices who control the Supreme Court rule in favor of the Republican petitioners.

In fact, we know that governments that disregard the will of voters quickly lose legitimacy with them. In revolutionary France, the coup of Sept. 4, 1797, irrevocably damaged the standing of the newly established republican government in the eyes of its citizens and set it on the path to a popular dictatorship under Napoleon Bonaparte.

The French Revolution of 1789 sought to establish a constitutional monarchy that would be more responsive to the needs of its citizens. The king had resisted changes, leading to the overthrow of the monarchy and the creation of the First Republic in September 1792.

What followed was the “Reign of Terror,” a bloody effort by revolutionaries to protect the fledgling government against both internal and external enemies of the French republic. The Committee of Public Safety, appointed by the National Convention (the French legislative body), led the effort to purge the nation of perceived traitors. Thousands of French men and women suspected of insufficient loyalty to the new government faced execution. Eventually the National Convention feared for their own safety, and they turned on the most prominent members of the committee, including Maximilien Robespierre, who was sent to the guillotine with his closest associates on July 28, 1794.

With the end of the “Terror,” the National Convention hammered out the Constitution of Year III (1795), establishing a new governmental structure with a bicameral legislature and an executive board of five directors. Taxpaying male citizens were allowed to vote, but with certain restrictions. The French bourgeois politicians who shaped the new constitution wanted to maintain republican constitutional structures and feared a return of the monarchy. But, they now associated popular sovereignty with mob rule and unreasonable demands for political rights and social benefits. They considered it essential to keep power in the hands of law-respecting property owners such as themselves.

However, continued economic and financial turmoil, along with France’s continuing war with most of Europe, meant that the new government, called the Directory, was extremely unpopular with both the Jacobin left and the royalist right.

And yet, the new constitution dictated that, in the interests of continuity and stability, two-thirds of the deputies in the new Council of Five Hundred and the Council of Elders would be elected from former members of the National Convention. This kept the legislature in republican hands for the first two election cycles.

When the first real opportunity for French voters to weigh in on their representatives came in April 1797, a coalition of royalists won a decisive victory and took control of both legislative chambers. This resurgent royalism worried three of the Directors — Paul Barras, Jean-François Reubell and Louis-Marie La Revellière-Lépeaux — while Directors Lazare Carnot and the newly chosen monarchist François-Marie Barthélemy urged the others to cooperate with the right-majorities on the councils.

Tensions increased over the summer of 1797 as the dominant royalist coalition grew increasingly assertive. The three Republican directors sought an allegiance with the military as they made plans to fight back.

On Sept. 4, 1797, the government declared martial law, claiming that a royalist conspiracy made it necessary. They annulled the previous April’s election results in half of France’s departments, while ordering the arrest of Carnot and Barthélemy, along with about 50 right-wing deputies, and removed approximately 200 deputies from the two legislative councils. They continued with a purge of conservatives throughout the government, closed down 32 newspapers and took renewed action against priests and other political opponents, a significant number of whom were deported.

While the Directors had for two years touted themselves as centrist constitutional guardians against the violent anarchy of the political left and the drive for royalist rule on the right, they were now exposed as willing to use force to override elections and to pressure the judiciary to act against their political enemies.

The Directors further undercut their own legitimacy as they worked to make sure that their opponents would be denied a majority in the elections of 1798. Most notably, they encouraged the creation of alternate electoral assemblies in districts where they feared the selection of either leftist or right-wing candidates for the councils or judicial positions.

And so, as the election results came in May 1798, the two legislative houses legally annulled the election of over 100 deputies and replaced them with candidates supportive of the regime — this time eliminating left-wing candidates most often.

In the end, these actions made it clear that the “constitutional” government did not represent the democratic aspirations of its citizens. With the regime so clearly committed to retaining its own power rather than respecting electoral results, it then became impossible for the Directory to call on the French public to uphold the constitution when a popular general named Napoleon Bonaparte carried out his own coup d’etat on Nov. 9, 1799. When the councils tried at first to resist the coup, objecting to Napoleon’s violation of the Constitution, he responded, “The Constitution! You yourselves have destroyed it. … It no longer has the respect of anyone.” Once soldiers threw their support to Napoleon and forced the Council of Five Hundred to disperse, the members of the Directory quietly stood aside. A rump of deputies approved Napoleon’s illegal seizure of power.

It is possible that the judges on the Supreme Court who voted to take up Harper this fall, and the Republican state legislators who have asked them to do so, genuinely see their actions as justified, much as the members of the Directory believed that they could only preserve republican institutions by subverting the constitution. It is difficult, though, to see the desire to put sole control of election rules in the hands of a partisan legislative body as anything more than a power grab.

Regardless, French history shows how dangerous such a move would be. Constitutional government gains its legitimacy through the democratic process. But increasingly, Americans are cynical about our democratic institutions. According to a recent survey, “voters are losing faith in our elections, our institutions, and most of all, in the ability of our democracy to survive.” Recent Supreme Court decisions and Republican willingness to ignore norms, and even laws, in their drive for political power has exacerbated these threats.

However, there is a stark historical lesson about continuing down this path. While the Directors thought that their decision to subvert the constitution would save the Republic and their political careers, it, in fact, laid the groundwork for Napoleon’s victory and their own downfall.