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]

Just to be clear about what this means. If neither the judicial nor executive branch of a state has any say over the legislature's voting rules, it very clearly means that a party in control of the state house can take measures to ensure that they stay in the state house. They can draw districts that result in very unfair representation and domination, even by a party in the minority. For example, Wisconsin is about 50/50 in terms of party registration among voters. But the state house is 70% Republican, largely due to the district maps that the state house has drawn.

If the SCOTUS rules in favor of the Independent legislature theory, there are literally no checks on the state legislatures. This could even include making the state's vote for president advisory, leaving the final choice of electors to the legislature . . . in a scenario like 2020 except where a candidate that loses the vote can still be elected because the state legislature chooses its own electors. There would remain some question as to whether the legislatures could act in violation of the US Constitution (e.g. equal protection) but otherwise, they would be free to act in any way they choose.

It is a very important issue in the safeguarding of Democracy.

 

[MT15]

I know it’s important, Chuck, but I feel helpless. Republicans have no integrity left. They are going to grab power however they can, using any means they can, and they’ve loaded the judiciary. Our house districts are horribly gerrymandered. What can we do, other than vote for democrats up and down the ballot?

 

[Lapaz]

Just to be clear about what this means. If neither the judicial nor executive branch of a state has any say over the legislature's voting rules, it very clearly means that a party in control of the state house can take measures to ensure that they stay in the state house. They can draw districts that result in very unfair representation and domination, even by a party in the minority. For example, Wisconsin is about 50/50 in terms of party registration among voters. But the state house is 70% Republican, largely due to the district maps that the state house has drawn.

If the SCOTUS rules in favor of the Independent legislature theory, there are literally no checks on the state legislatures. This could even include making the state's vote for president advisory, leaving the final choice of electors to the legislature . . . in a scenario like 2020 except where a candidate that loses the vote can still be elected because the state legislature chooses its own electors. There would remain some question as to whether the legislatures could act in violation of the US Constitution (e.g. equal protection) but otherwise, they would be free to act in any way they choose.

It is a very important issue in the safeguarding of Democracy.

Putting the vote in the hands of a legislature that can also bend the rules to assure they maintain control of the legislature could be the most dangerous threat to our democracy. We have at least 25 conservative states that could take over their legislature that might disenfranchise their voters, whereas I don't think any blue states would do this. Of the remaining 25 states, there are a few purple states that could also go this route, which could result in locking down the presidency with a minority of votes in perpetuity. This is really dangerous, but there may not be a way to fix this, since it is practically impossible to change the constitution. It feels like this is a ticking timebomb that will eventually play out.

 

[MT15]

This seems like a great show of unity - maybe the SCOTUS will take heed:

 

[wardorican]

So, what other Democracies are out there that are good living? lol.

 

[superchuck500]

This seems like a great show of unity - maybe the SCOTUS will take heed:

“It’s the biggest federalism issue in a long time,” Chief Justice Nathan L. Hecht of the Texas Supreme Court said on the phone the other day. “Maybe ever.”

He was explaining why the Conference of Chief Justices, a group representing the top state judicial officers in the nation, had decided to file a brief in the U.S. Supreme Court in a politically charged election-law case. The brief urged the court to reject a legal theory pressed by Republicans that would give state legislatures extraordinary power.

. . .

“That the conference is willing to take a stand here highlights how extreme and dangerous the argument of the North Carolina legislators is,” he said. “That argument would undermine the authority of state courts to interpret state law — a bedrock principle of our system of federalism, and one that conservative justices historically championed, not questioned.”

I don't think it's hyperbole - if the US is on a trajectory toward the end of the American system of democracy, this is a major waypoint. We have all seen just how self-serving, anti-democratic, and even fascist the Republican-led state legislatures have been . . . giving them unchecked power to control voting and even disregard elections (including the POTUS) would certainly mark the end of a long era.

It's true indeed that state houses run by Democrats would respond in kind with some (probably not all) of the same measures, especially when it comes to staying in power (i.e. districting). But this will only continue the fracture of the nation that will likely lead to secession (when, for example, a candidate clearly wins a presidential election under the traditional democratic processes but this newly gained power causes a different result) . . . and that will be the end of the US as we know it.

 

[Devildog]

If that happens, I'm forking leaving and never coming back. I will renounce my citizenship. My wife, who's conservative, but nowhere near a Trump supporter, has finally started seeing what the Republican party is now and we have been discussing leaving. Very preliminary, but it's being discussed.

I didn't spend 12 years in the Marine Corps and get hurt in the process to watch this bullshirt happen.

 

[superchuck500]

If that happens, I'm forking leaving and never coming back. I will renounce my citizenship. My wife, who's conservative, but nowhere near a Trump supporter, has finally started seeing what the Republican party is now and we have been discussing leaving. Very preliminary, but it's being discussed.

I didn't spend 12 years in the Marine Corps and get hurt in the process to watch this bullshirt happen.

Even when you post something as passionate as this, I still turn and see your avatar and laugh.

 

[MT15]

There’s a new amicus brief in this case. Here’s a really good thread about it:

 

[superchuck500]

https://www.washingtonpost.com/politics/2022/12/07/election-oversight-supreme-court-north-carolina/

 

[bird]

I wrote an e-mail to the author of Civil War By Other Means: America’s Long and Unfinished Fight for Democracy. I posited that the constitution was written for a relatively small, relatively homogeneous and static country. He agreed.

The growth of the U.S. has had the unintended consequence of making the country almost ungovernable. This SCOTUS case could effectively end the concept of a “United” States (which really has never existed completely)

 

[TomT]

Gentleman. I am as concerned about what this Supreme Court will do. However, much of what is claimed to be at risk, in my opinion is not. The clause in question
Section 4 Congress
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Thus the Constitution RESTRICTS state legislatures to time, place and how the election is held. There is NO provision for the state legislature - at least under this clause - to subvert the vote of the public. The legislatures are NOT given the power to chose the President independently of the voters. "Manner of holding elections" not manner to chosing Presidents.

 

[bird]

Gentleman. I am as concerned about what this Supreme Court will do. However, much of what is claimed to be at risk, in my opinion is not. The clause in question
Section 4 Congress
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Thus the Constitution RESTRICTS state legislatures to time, place and how the election is held. There is NO provision for the state legislature - at least under this clause - to subvert the vote of the public. The legislatures are NOT given the power to chose the President independently of the voters. "Manner of holding elections" not manner to chosing Presidents.

I operate on the theory of paranoia. Just because I am paranoid that doesn’t mean they are not out to get me. This court took the web designer case which wasn’t even a case. Roberts has no control of the other justices.

 

[BullSheetBuddha]

I wrote an e-mail to the author of Civil War By Other Means: America’s Long and Unfinished Fight for Democracy. I posited that the constitution was written for a relatively small, relatively homogeneous and static country. He agreed.

The growth of the U.S. has had the unintended consequence of making the country almost ungovernable. This SCOTUS case could effectively end the concept of a “United” States (which really has never existed completely)

The Living Constitution | University of Chicago Law School

Do we have a living Constitution? Do we want to have a living Constitution? A living Constitution is one that evolves, changes over time, and adapts to new circumstances, without being formally amended. On the one hand, the answer has to be yes: there's no realistic alternative to a living...

www.law.uchicago.edu

 

[Lapaz]

Gentleman. I am as concerned about what this Supreme Court will do. However, much of what is claimed to be at risk, in my opinion is not. The clause in question
Section 4 Congress
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Thus the Constitution RESTRICTS state legislatures to time, place and how the election is held. There is NO provision for the state legislature - at least under this clause - to subvert the vote of the public. The legislatures are NOT given the power to chose the President independently of the voters. "Manner of holding elections" not manner to chosing Presidents.

Interpreting Article 1 as the Petitioners want would only allow congress to check state legislatures, but state legislatures would set the rules for picking congressmen. Congressmen would have a distorted incentive to accept the state legislaturers' regulations. Also, it would cut out the judiciary, which enforces state constitutions.

Also, codifying ISL would have an impact on choosing the president, because it is expected that the same Independent State Legislature principle would apply to Article 2, which states:

"Clause 2 Electors

• Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

If ISL were codified into law, then it would allow legislatures to appoint electors that don't represent the votes of their citizens. It would be a huge step towards ending democracy.

 

[superchuck500]

The dispute that led to the ISL case being before the Supreme Court (Moore v. Harper) is now effectively moot - as the new conservative majority at the NC Supreme Court overturned its prior decision rejecting the state legislature's district map. That prior decision was the basis for the NC legislature to bring the challenge in court on the theory that the Constitution vests only state legislatures with the power to govern presidential elections in the state . . . the state courts have no review power, or so they argued.

The Supreme Court only decides "ripe controversies" - it does not issue advisory or declaratory opinions on issues, no matter how important they are, when they are not before the court in the form of a ripe controversy. And where the controversy that gave rise to the case before the court becomes moot before the court's decision, that "mootness" deprives the court of jurisdiction to continue on and decide the case.

After the recent decision in NC, the Supreme Court asked the parties to brief the question of mootness and without having read the briefs on the question, it seems pretty likely that the court will dismiss the case as moot.

What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case? #ELB

What a mess. Rick H. links to the North Carolina Supreme Court’s decision in the partisan gerrymandering cases. The congressional piece of that is in front of the United States Supreme Court right now. Earlier, I blogged about how “mootness” … Continue reading What happens to Moore v. Harper...

electionlawblog.org

 

[MT15]

Well, that stinks in one way, because the reason it’s moot is because the new NC Supreme Court is radically activist and in another way that’s good, because the radical activists on the SCOTUS can’t mess it up.