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

Experience our interactive, profoundly engaging digital publication!

washingtonlawyer.dcbar.org

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

 

[DaveXA]

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.

Yeah, anyone who didn't think Barrett would vote to overturn RvsW wasn't paying enough attention. I was surprised RvsW was overturned, but I wouldn't say shocked. I knew it was a possibility.

 

[LA - L.A.]

Thank God.

Amen to that. This is the case I was most worried about, because if it goes the other way, it would have seriously destabilized our constitutional democracy and our society.

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

Maya Angelou has some sage advice about the dissenters in this case. ETA: It's being reported that Alito dissented, because he thought the case should have been dismissed out of hand.

 

[MT15]

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

Well, I do think the amount of deference given to certain justices may ebb as their ethical shortcomings are exposed. At least I like to think so, lol.

 

[MT15]

Amen to that. This is the case I was most worried about, because if it goes the other way, it would have seriously destabilized our constitutional democracy and our society.

Maya Angelou has some sage advice about the dissenters in this case. ETA: It's being reported that Alito dissented, because he thought the case should have been dismissed out of hand.

I’m glad that the majority thought the case should be settled. Mooting it would have allowed Eastman and his buddies to continue to maintain that their theory was valid.

 

[LA - L.A.]

I’m glad that the majority thought the case should be settled. Mooting it would have allowed Eastman and his buddies to continue to maintain that their theory was valid.

Same here. It needed to be decided one way or the other. If for no other reason than needing to know if I needed to rush to get my passport renewed.

 

[superchuck500]

The Court Eviscerates the Independent State Legislature Theory

But bad-faith actors are still a threat to America’s elections.

www.theatlantic.com

 

[DJ1BigTymer]

The Court Eviscerates the Independent State Legislature Theory

But bad-faith actors are still a threat to America’s elections.

www.theatlantic.com

I sure hope their rosy opinion of SCOTUS' decision is right, because I took the conservatives' of the court view on the matter is that they are eagerly looking for a competent argument that they could support.

 

[superchuck500]

I sure hope their rosy opinion of SCOTUS' decision is right, because I took the conservatives' of the court view on the matter is that they are eagerly looking for a competent argument that they could support.

Roberts wrote the opinion that ACB joined and Kavanaugh concurred. The theory has no other arguments apart from the plain text argument - which Roberts resoundingly defeated. I don’t think it’s anything they’ll change their mind on, it’s a pretty fundamental question.

 

[DJ1BigTymer]

Roberts wrote the opinion that ACB joined and Kavanaugh concurred. The theory has no other arguments apart from the plain text argument - which Roberts resoundingly defeated. I don’t think it’s anything they’ll change their mind on, it’s a pretty fundamental question.

Fair enough, but I have plenty reason to be skeptical, this court has overturned previous decisions 14 times in the past 10 years. I fully expect extremist to repeatedly push this theory in front of SCOTUS until they build a roadmap to circumvent these speed-bumps.

 

[DaveXA]

Fair enough, but I have plenty reason to be skeptical, this court has overturned previous decisions 14 times in the past 10 years. I fully expect extremist to repeatedly push this theory in front of SCOTUS until they build a roadmap to circumvent these speed-bumps.

I'm not doubting you, but can you list the 14 times, or link a source? Seems like a pretty exact number.

 

[DJ1BigTymer]

I'm not doubting you, but can you list the 14 times, or link a source? Seems like a pretty exact number.

I just counted how many times it was done in the past 10 years without looking at the specific cases.

https://constitution.congress.gov/resources/decisions-overruled/

And for historical context:

It’s extremely rare for the U.S. Supreme Court to overturn one of its own decisions. Of the more than 25,500 decisions handed down by the Supreme Court since its creation in 1789, it has only reversed course 146 times, less than one-half of one percent.

That’s because the legal concept of precedent has played such a central role in common law systems for “at least 1,000 years,” says David Schultz, law professor at the University of Minnesota Law School. “Precedent says that ‘like cases should be decided alike.’ It appeals to our notions of justice and fairness.”

8 Landmark Supreme Court Cases That Were Overturned | HISTORY

U.S. Supreme Court justices have generally deferred to precedent, but there have been notable exceptions.

www.history.com

 

[DaveXA]

I just counted how many times it was done in the past 10 years without looking at the specific cases.

https://constitution.congress.gov/resources/decisions-overruled/

And for historical context:

8 Landmark Supreme Court Cases That Were Overturned | HISTORY

U.S. Supreme Court justices have generally deferred to precedent, but there have been notable exceptions.

www.history.com

That seems to me a bit arbitrary because some of those decisions overturned arguably bad precedent. Just as the Constitution and Bill of Rights are living documents, our laws change from time to time to reflect the society we live in to some degree. That includes overturning precedent.

Certainly the overturning of RvsW is one most people disagree with, but that doesn't mean everything else didn't merit being overturned. They're definitely not doing it willy nilly.

I mean, look at history. For example, from 1963-1965, a 3 year period, they overturned precedent 15 times. That's a far more frequent pace of overturns than now. If anything, it's actually slowed down some. I mean, from 2020-2022 just 3 overturns, and not one year in 2023. So... just a thought.

 

[MT15]

That seems to me a bit arbitrary because some of those decisions overturned arguably bad precedent. Just as the Constitution and Bill of Rights are living documents, our laws change from time to time to reflect the society we live in to some degree. That includes overturning precedent.

Certainly the overturning of RvsW is one most people disagree with, but that doesn't mean everything else didn't merit being overturned. They're definitely not doing it willy nilly.

I mean, look at history. For example, from 1963-1965, a 3 year period, they overturned precedent 15 times. That's a far more frequent pace of overturns than now. If anything, it's actually slowed down some. I mean, from 2020-2022 just 3 overturns, and not one year in 2023. So... just a thought.

All true, but I think during the 1963-65 period they were expanding the rights of ordinary citizens. Now with Roe and gutting the voting act and citizens United one could say they are mostly taking away from ordinary citizens. I think that’s why this period hits differently.

 

[DaveXA]

All true, but I think during the 1963-65 period they were expanding the rights of ordinary citizens. Now with Roe and gutting the voting act and citizens United one could say they are mostly taking away from ordinary citizens. I think that’s why this period hits differently.

That makes sense. It's definitely a pendulum shift, and the makeup of the court reflects that to no one's surprise. The shift has been more gradual than it was in the 60s for sure. Whether that continues is TBD I think.

 

[DJ1BigTymer]

That seems to me a bit arbitrary because some of those decisions overturned arguably bad precedent. Just as the Constitution and Bill of Rights are living documents, our laws change from time to time to reflect the society we live in to some degree. That includes overturning precedent.

Certainly the overturning of RvsW is one most people disagree with, but that doesn't mean everything else didn't merit being overturned. They're definitely not doing it willy nilly.

I mean, look at history. For example, from 1963-1965, a 3 year period, they overturned precedent 15 times. That's a far more frequent pace of overturns than now. If anything, it's actually slowed down some. I mean, from 2020-2022 just 3 overturns, and not one year in 2023. So... just a thought.

As I said, I didn't look at the cases for context, that being said, the overturns that happened in the sixties were for the growth of this nation. The ones that are happening today are a direct attack on that growth.

 

[Huntn]

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.

This is the worst, just say what they want you to say and lie your arse off. Politics at it’s worst. But in this climate do I expect more? Nope.

 

[superchuck500]

 

[bird]

Time to eliminate states as political units until and unless they submit to federal authority.

They are not laboratories of democracy. They are laboratories of charlatanism.