Conservatives pushing 'independent state legislature' theory (Update: SCOTUS rejects) (1 Viewer)

[superchuck500]

In their boundless effort to disenfranchise voters and bring election results that they desire despite their minority status, conservatives have latched on to the independent state legislature theory - which basically holds that the Constitution at Article I Section 4 and Article II Section 1 vest state legislatures with exclusive authority to decide how (1) elections are to be run in the state, and (2) the 'electors' to the presidential electoral college.

In other words, the proponents of this theory assert that only the state houses can make these rules and decisions, and state governors and the state judicial system - including the states supreme courts - have no say in the matter. Years of precedent and legal scholarly writing hold to the contrary: these clauses refer to state lawmaking, including governor veto and state supreme court judicial review (for constitutionality). But with today's "hyper-originalist, textualist" Supreme Court, the door has been opened for this formerly "fringe theory" to become law in the United States . . . simply because the words of the text invite this interpretation despite all of the evidence that the founding fathers did not intend for such a literal reading.

In June 2022, the SCOTUS granted a writ to a challenge to North Carolina's supreme court's decision that a redistricting map from the North Carolina state legislature was "unconstitutional beyond a reasonable doubt" . . . and conservatives on the NC legislature argue that the state supreme court has no say in the matter (nor, ergo, does the state constitution). The Court will hear argument in the matter next session.

The dispute hinges on how to understand the word “legislature.” The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.

Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.

Extreme versions of the theory would block legislatures from delegating their authority to officials like governors, secretaries of state, or election commissioners, who currently play important roles in administering elections.

Where did the independent state legislature theory come from?​

Following the disputed 2000 election, Chief Justice William Rehnquist wrote a concurring opinion in Bush v. Gore proposing an embryonic version of the independent state legislature theory. He argued that the Constitution’s assignment of elections authority to state legislatures diminishes state judges’ power to alter “the general coherence of the legislative scheme.” This approach garnered little scrutiny outside academia at the time.

Fifteen years later, the idea was exhumed as part of an effort to dismantle Arizona’s independent redistricting commission. Again, the Supreme Court rejected the theory and let the commission continue its work.

Then, after the 2020 election, President Trump and his allies used the independent state legislature theory as part of their effort to overturn the results. For a third time, the Supreme Court declined to adopt the theory. But three sitting justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch —endorsed it.

Most recently, gerrymanderers in North Carolina, Kansas, and beyond, have invoked the independent state legislature theory to try to block state courts from reviewing their maps. So far, the Supreme Court has not embraced it.

The ‘Independent State Legislature Theory,’ Explained

This dubious legal theory could have dramatic consequences for elections.

www.brennancenter.org

Washington Lawyer - September/October 2022

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What's at stake in Supreme Court battle over controversial legal theory about who controls elections

The “independent state legislature" theory, backed by conservatives, contends that state lawmakers have the ultimate power to regulate federal elections

abcnews.go.com

 

[superchuck500]

Thank God. It’s a 6-3 result (Thomas, Alito, Gorsuch dissent).

 

[MT15]

Thank God

I think it’s possible that Alito and Thomas have lost a little of their juice with the rest of the Justices.

 

[MT15]

 

[GrandAdmiral]

Thank God. It’s a 6-3 result (Thomas, Alito, Gorsuch dissent).

Not surprised by those dissenting...

 

[DJ1BigTymer]

Not surprised by those dissenting...

I am. I would have thought it would be 7-2!

 

[Huntn]

It appears that SCOTUS is not yet a complete tool of ultra right, GOP States Rights crowd.
https://www.msn.com/en-us/news/poli...-that-found-racial-gerrymandering/ar-AA1d3Duo
If you remember the Civil War was fought in the South’s perspective not in the name of pro-slavery, but in the name of State’s Rights, the “right to be bad if we want to”. The same thinking that insisted on segregation, and today, hostility towards The Voters Rights Act throwing up multiple roadblocks in the way of convienent voting.

There is really not much mystery why minority majority states are under-represented.

“In the Allen decision, the court effectively found that the state’s congressional lines likely violated the landmark piece of civil rights legislation. Even though Black people make up roughly a quarter of Alabama’s population, just one of the state’s seven congressional districts is majority Black — which the challengers attributed to racial gerrymandering.”

 

[superchuck500]

I am. I would have thought it would be 7-2!

I haven’t read the opinions so I will defer for now, but yeah - that part is a bit concerning.

 

[Lapaz]

I am. I would have thought it would be 7-2!

The ruling should've been 9-0. If legislatures have no checks on election rules, then we would end up with permanent legislatures, since they could pass laws to assure that they never lose an election. This case would've immensely damaged our democracy. Thomas is a horrible justice, so his vote didn't surprise me. Alito is almost as bad, but I would think that he would've recognized the destructive potential. Gorsuch seems like he is almost as bad as Alito and Thomas. Fortunately Alito and Thomas are the 2 oldest judges, so they may soon get replaced with more reasonable judges, but we'll be stuck with Gorsuch for decades.

 

[bird]

The ruling should've been 9-0. If legislatures have no checks on election rules, then we would end up with permanent legislatures, since they could pass laws to assure that they never lose an election. This case would've immensely damaged our democracy. Thomas is a horrible justice, so his vote didn't surprise me. Alito is almost as bad, but I would think that he would've recognized the destructive potential. Gorsuch seems like he is almost as bad as Alito and Thomas. Fortunately Alito and Thomas are the 2 oldest judges, so they may soon get replaced with more reasonable judges, but we'll be stuck with Gorsuch for decades.

Gorsuch, beer bong boy and The Handmaid.

Congress is empowered to establish rules regarding federal elections. Of course, this congress of idiots will do nothing of the sort.

 

[superchuck500]

The ruling should've been 9-0. If legislatures have no checks on election rules, then we would end up with permanent legislatures, since they could pass laws to assure that they never lose an election. This case would've immensely damaged our democracy. Thomas is a horrible justice, so his vote didn't surprise me. Alito is almost as bad, but I would think that he would've recognized the destructive potential. Gorsuch seems like he is almost as bad as Alito and Thomas. Fortunately Alito and Thomas are the 2 oldest judges, so they may soon get replaced with more reasonable judges, but we'll be stuck with Gorsuch for decades.

So I skimmed the dissent and I think it bears mention that the dissent is in two parts: in Part I, Thomas writes (and Gorsuch and Alito join) that the NC SCT subsequent ruling in Harper 2 should have rendered the case moot and not justiciable. This is not a decision on the merits but on the procedure. Alito stopped there and did not join Part II.

In Part II, Thomas writes and Gorsuch joins that the majority gets it wrong b/c Elections Clause power flows from the Constitution itself and not from the state or the state’s law making power. It’s purely a semantic argument (with a load of purported practical implications) with no history or evidence of framers’ intent. It’s not specious but wants to place the determination of the time, place, and manner of elections uniquely in the hands of state legislatures, alone. Closing with the concern that the Court has created problems for the judiciary because the standard of review isn’t clear (that’s not been a problem for the judiciary historically).

I do now agree that it’s concerning that Gorsuch would join this conclusion (it’s classic Thomas). Alito only joined the mootness part so we can’t say he was in on it.

 

[DaveXA]

I'd just add that Barrett hasn't been a disaster of a justice so far, at least not outside the abortion decision. We just have to hope she, Kavanagh and Roberts continue to be the voice of reason from the right side.

I'm not sure if they've been turned off by Thomas and Gorsuch's questiinable dealings with supporters or if they're just voting on principle though.

 

[SFIDC3]

I'd just add that Barrett hasn't been a disaster of a justice so far, at least not outside the abortion decision. We just have to hope she, Kavanagh and Roberts continue to be the voice of reason from the right side.

I'm not sure if they've been turned off by Thomas and Gorsuch's questiinable dealings with supporters or if they're just voting on principle though.

WTF? Dude, outside the abortion decision? She did exactly what the right wing christian wackos wanted there, anything else pales in comparison.....that decision (a decision she actually reversed herself on conveniently - after telling lawmakers she believed Roe was settled law) is resulting in thousands of women in this country needlessly suffering.....I hope she suffers like those women do someday.....

 

[DaveXA]

WTF? Dude, outside the abortion decision? She did exactly what the right wing christian wackos wanted there, anything else pales in comparison.....that decision (a decision she actually reversed herself on conveniently - after telling lawmakers she believed Roe was settled law) is resulting in thousands of women in this country needlessly suffering.....I hope she suffers like those women do someday.....

I said outside the abortion decision, meaning not including the abortion decision. I think you read what I said wrong. I'm not comparing it. Just saying aside from the abortion decision she's hasn't been nearly the disaster some pundits predicted.

The abortion decision was terrible, but that's not what my post was addressing.

 

[superchuck500]

I said outside the abortion decision, meaning not including the abortion decision. I think you read what I said wrong. I'm not comparing it. Just saying aside from the abortion decision she's hasn't been nearly the disaster some pundits predicted.

The abortion decision was terrible, but that's not what my post was addressing.

I don’t think their rationale on case resolution ebbs and flows with how they feel about the other justices at the moment.

 

[Lapaz]

I said outside the abortion decision, meaning not including the abortion decision. I think you read what I said wrong. I'm not comparing it. Just saying aside from the abortion decision she's hasn't been nearly the disaster some pundits predicted.

The abortion decision was terrible, but that's not what my post was addressing.

I agree. Despite Barrett’s hearings, I think most suspected she would vote to overturn Roe. I thought she would be a right wing ideologue, but aside from that decision, she has been a good Justice. Kavanaugh has also been surprisingly reasonable. He may have been a scumbag as a young man, but he seems to be decent now.

 

[zztop]

that decision (a decision she actually reversed herself on conveniently - after telling lawmakers she believed Roe was settled law) is resulting in thousands of women in this country needlessly suffering.....I hope she suffers like those women do someday.....

They ALL lied. Those forkers lied just to get their lifetime appointment, knowing full well they would reverse it first chance they got (which they did). They lost all credibility by lying. They all need to go.

handmaid lied, beerpong dude lied, the guy that obstructionist republicans got to pick lied.

 

[DaveXA]

I don’t think their rationale on case resolution ebbs and flows with how they feel about the other justices at the moment.

I wouldn’t say it ebbs and flows, but I do think that they might be less inclined to agree with the other two. But I'm not sure if that more because they already view jurisprudence a certain way or of the dissenting votes just do their own thing. I think there's something there, but the question is whether their decisions would otherwise be different, and I'm not really sure.

 

[DaveXA]

They ALL lied. Those forkers lied just to get their lifetime appointment, knowing full well they would reverse it first chance they got (which they did). They lost all credibility by lying. They all need to go.

handmaid lied, beerpong dude lied, the guy that obstructionist republicans got to pick lied.

They did, but what's done is done. All we can do is hope they make better decisions with other cases. They're not going anywhere unless they pass away or retire.