Legal expert sketches out ‘grim scenario’ where Republicans impose minority rule for the ‘foreseeable future’

Republicans are poised to attain their longtime goal of a permanent majority if they retake Congress next month and the U.S. Supreme Court rules in their favor in a major election case.

A GOP-led House would end the Jan. 6 investigation and possibly impeach President Joe Biden, and the Supreme Court could essentially hand the presidency to Republicans if they rule in favor of the so-called “independent state legislature theory” that helped fuel the insurrection, wrote The Bulwark columnist Kimberly Wehle.

"If the GOP takes over the House and the Supreme Court decides a case called Moore v. Harper as the GOP wants it to, it is entirely possible that Democrats will be locked out of the presidency for the foreseeable future, regardless of the popular vote and the Electoral College vote tally," wrote Wehle, a visiting professor of law at American University’s Washington College of Law. "Republicans will keep control of the White House because Republican state legislatures will say so."

The Constitution grants state legislatures the authority to govern federal elections unless Congress passes a national law, but Moore hinges on the argument that only legislatures can regulate national elections, and nothing in the founding document could stop state legislators from independently deciding who gets their state's Electoral College votes -- regardless of which candidate won the most votes.

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"Here, then, is how it all could play out," Wehle wrote. "Republicans, including a majority of election deniers, win control of the U.S. House of Representatives in 2022. The Supreme Court in Moore holds that only state legislatures can make laws governing elections (Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and possibly Brett Kavanaugh have already signaled support for the theory), unless Congress steps in, which a GOP majority in the House won’t do."

Republicans currently control more than half of all state legislative seats across the country, and GOP-led legislatures could flip the results in one or two key states to overturn a possible Democratic presidential win, and the Republican Congress would certify those results in January 2025 or refuse to certify the results if legislators fail to impose a GOP win.

"Is this outcome a certainty?" Wehle wrote. "No — but none of these steps is implausible, and the whole grim scenario seems to grow more likely with each passing day ... This Court knows that the November midterm election will decide who has power in America for a long time to come. Voters need to wake up to this reality as well — and quickly."

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