Brynn Anderson/AP Photo
A voting rights rally at Liberty Plaza near the Georgia State Capitol, June 8, 2021, in Atlanta
One of the sleeper clauses in the U.S. Constitution is Article IV, Section 4, known as the Guarantee Clause. It provides that “The United States shall guarantee to every state in this union a republican form of government.”
Note that this is republican with a lowercase r, as in government by and for the people, and not Republican as in the Republican Party. But lately, several states controlled by Republicans seem to be turning the Guarantee Clause on its head.
Question: If a combination of extreme voter suppression and gimmicks that allow the incumbent ruling party to overturn elections leads to the permanent entrenchment of one party, at what point does this violate the Guarantee Clause? Can a one-party state based on rigged elections, by any stretch, be considered a “republican form of government”?
For the most part, the courts have taken a very restrictive view of when a challenge under the Guarantee Clause might be taken seriously. But the latest voter suppression tactics call that assumption into question. In Georgia, as Ian Millhiser recently pointed out, one provision of the newly enacted suppression law effectively empowers Republicans to selectively close polling precincts in areas such as Fulton County likely to vote for Democrats.
Measures like these create one-party states—permanent Republican forms of government. At what point might such tactics offend even John Roberts, whose rulings on voter suppression have been uniformly disingenuous?
Our friend and occasional Prospect author Erwin Chemerinsky, dean of the UC Berkeley law school, has long urged courts to entertain a more expansive interpretation of the Guarantee Clause.
It’s not as if the clause has gone entirely unnoticed. In his epic dissent in the 1896 case of Plessy v. Ferguson, upholding Louisiana’s “separate but equal” facilities for Blacks (which were in fact far from equal but emblems of white supremacy), Justice John Marshall Harlan invoked the Guarantee Clause:
I am of opinion that the state of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the constitution of the United States … Such a system is inconsistent with the guarantee given by the constitution to each state of a republican form of government.
Over to you, Justice Roberts.
