Voter suppression is out; “independent legislature theory” is in.
The Democrats used COVID, along with a group of moderate, progressive activists judges, to take over elections in many states during the last election. The rules concerning the certification of postal ballots and the use of ballot drop boxes are just two examples of areas in which unelected judges unilaterally modified election regulations on the day of an election, even as the ballots were being tallied. These rules were all made by autocrats. The US Constitution clearly says that the state legislature controls the “Times, Places and Manner” of federal elections. Although courts might have some authority to declare something not constitutional, the state legislature has no power whatsoever to write rules that govern how another branch of government is elected.
Federal and state judiciarys have made it a game of managing and taking control of state elections over the past 50 years. Now, the Supreme Court will hear a case that tests the limits to how much interference judges can make.
The Supreme Court declared that it would continue to address the question of who gets what in federal elections at the Fall after the conclusion of its last term. They chose to use the case of Moore vs. Harper. SCOTUSBlog provides background information.
After the Republican-controlled North Carolina legislature adopted a new congressional map in early November 2021, a group of Democratic voters and non-profits went to state court to challenge the map. They contended among other things that, because the state is roughly divided between Democrats, Republicans, and unaffiliated voters, the new map – which likely would have allowed Republicans to pick up two more seats in Congress, giving them as many as 10 of the state’s 14 seats – was a partisan gerrymander that violated the state’s constitution.
The North Carolina Supreme Court stopped the state’s use of its map for the 2022 election and directed the trial court either to approve the new map or adopt it before the end. Three court-appointed experts drew a new map that was adopted by the trial court.
Republican state legislators came to the Supreme Court on an emergency basis in late February, asking the justices to reinstate the legislature’s original map before the state’s primary election, which took place on May 17. But over a dissent by Alito that was again joined by Thomas and Gorsuch, the court turned down the request. Both the Alito dissent and a concurring opinion by Justice Brett Kavanaugh, however, called the “independent state legislature” theory an important question, with Alito adding that the justices “will have to resolve this question sooner or later, and the sooner we do so, the better.”
The legislators returned to the court later in March, seeking review of the North Carolina Supreme court’s decision invalidating the legislature’s map and ordering a new map for the 2022 elections. They told the justices that the state supreme court’s order was “starkly contrary to the” elections clause. The text of that clause, the legislators insisted “Makes the power to regulate the times, places, and manner of federal elections and then Vests that power in ‘the Legislature’ of each State.” The “independent state legislature” question, the legislators stressed “‘is almost certain to keep arising until the Court definitively resolves it.’” And because North Carolina will use the map created by the court for its 2022 congressional elections, they continued, the justices should resolve the question in this case, rather than having to do it on an expedited basis in a dispute arising after an election has already occurred.
Alito’s dissent contains this gem.
If the Elections Clause language is to be taken seriously, then there should be some limitation on state court authority to override actions of state legislatures while they prescribe rules for conducting federal elections. The applicants are likely to succeed in showing the North Carolina Supreme Court that it exceeded those limitations.
Needless to state, many of the left felt like the Hershey squirts when they thought that the Democrat SWAT Team, hyper-partisan, progressive judges would be dissolved before the next election.
Davis v. Hildebrant, 1916 is where the case’s origins lie. This case was about whether the Ohio Constitution’s provision allowing citizens to veto elections laws of their choice violated the Elections Clause. It did not, the Supreme Court decided because people have the ability to exercise legislative power via a referendum. Since then, the Supreme Court has defined “legislative power” as including the governor when he signs or vetoes legislation. All levels of courts have determined that they are able to decide on almost all aspects related to voting. We saw this in 2020.
I am not a lawyer so this is something that I feel strongly about. I feel it’s much better than the bad.
First of all, everyone is upset. That isn’t a very mature way to consider legal cases of major import, but it is very reliable. If the mainstream media are running editorials against it and progressive legal analysts are predicting the end of democracy, it can’t be all bad because I happen to think democracy is a pretty crappy form of government.
The second is that words can mean different things. According to the Constitution, state legislatures have control over time, place and manner. Most of the times when we’ve f***ed with the original document because of our modern sensibilities, we’ve made things a lot worse. I immediately think of the income tax and the direct election to senators.
Third, we know that leftwing activist judges can’t resist trying to fine-tune rules to help their favored candidates. It happens every election and it is done with complete impunity, as they are not accountable.
It would have been difficult to avoid the bitter feelings about 2020 if we could not just come up with new rules. Bush vs. GoreIt would have never happened, if Florida was allowed to apply its electoral laws without any judges interfering. Every redistricting project would become simpler if the courts could not interfere in electoral politics. I don’t know how this would work in practice, but I’m pretty sure it can’t work any worse than what we’ve got.
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