Miscellaneous And Off Topic Subjects

[AlabamAlum]

Good post, Jeff.

[THE_WIZARD_]

riveting post AA.

[AlabamAlum]

Talent,

Give me your take on the so-called "independent state legislative theory” ruling.

TIA.

[THE_WIZARD_]

UPDATE: On June 27, 2023, the Supreme Court rejected the “independent state legislature theory” in Moore v. Harper.

There’s a thread that links the partisan gerrymandering of congressional maps in North Carolina, attempts to dissolve the Wisconsin Election Commission, and efforts to overthrow the 2020 presidential election in Pennsylvania and elsewhere. In each case, the participants have invoked a dubious interpretation of the Constitution called the “independent state legislature theory.”

Long relegated to the fringe of election law, the theory will soon be front and center before the Supreme Court, which has agreed to hear a case concerning the North Carolina congressional maps in the fall. If the Supreme Court were to adopt the theory, it would radically change our elections.


What is the independent state legislature theory?


The independent state legislature theory is a reading of the Constitution, pushed in recent years by a small group of advocates, that would give state legislatures wide authority to gerrymander electoral maps and pass voter suppression laws. It has even been used as political cover to try to overturn elections.

The Constitution delegates power to administer federal elections to the states, subject to Congressional override. There is, however, a disagreement about how much power is delegated and to which state actors exactly.

There are two relevant clauses. One is the Elections Clause, which reads, “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.”

The other is the Presidential Electors Clause, which reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

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. What are some of the arguments for and against the independent state legislature theory?


Proponents of the independent state legislature theory emphasize a narrow reading of the word “legislature” in the Elections and Electors Clauses. They also point to a couple of Supreme Court cases from the early 20th century ruling that state constitutions could not take away state legislatures’ power to ratify federal constitutional amendments under Article V of the U.S. Constitution. Adherents argue that the same logic must apply to the Elections and Presidential Electors Clauses, even though the Supreme Court has made clear that the ratification of constitutional amendments under Article V is distinct from the ordinary lawmaking process used in election administration.

Critics point out several flaws in the independent state legislature theory and its justifications. First, the framers did not trust state legislatures to run fair elections. They empowered state legislatures to administer federal elections only with great hesitancy.

“What led to the appointment of this Convention?” John F. Mercer of Maryland rhetorically asked his fellow delegates to the 1787 Constitutional Convention. “The corruption & mutability of the Legislative Councils of the States.” James Madison, similarly suspicious of the legislatures, prepared for the convention by compiling a list of ways state legislators had failed to act in the national interest.

This mistrust comes through in the Elections Clause, which reserves to Congress the power to override the abuses of power that Madison and his colleagues expected. Given the low regard in which the framers held state legislatures, it’s difficult to imagine they would want to free those lawmaking bodies from the existing constraints of the gubernatorial veto, the state constitution, and judicial review.

There is further historical evidence against the independent state legislature theory. During the founding era, most state constitutions regulated federal elections and most state legislatures shared their elections power with other state actors. These practices, which are inconsistent with the independent state legislature theory, were uncontroversial at the time.

Critics also reject the theory’s narrow approach to the Constitution’s text. They point out that the term “legislature” doesn’t necessarily mean “exclusively the legislature.” The First Amendment, to draw a parallel, literally prohibits only “Congress” from discriminating on the basis of speech and religion. But we understand the amendment to apply to the federal government in its entirety, including the judicial and executive branches. That’s why, to take one example, a judge can’t close off her courtroom to atheists. What would happen if the Supreme Court accepted the independent state legislature theory?


The independent state legislature theory would cause significant disruption by potentially nullifying state constitutional provisions regarding federal elections. State constitutional bans on gerrymandering in Florida, Ohio, North Carolina, and other states could die, as could independent redistricting commissions in Arizona, California, Michigan and other states. Other state constitutional provisions — like the right to a secret ballot in many states — could also be wiped out.

Delegations of authority would also be questionable, robbing elections commissions and secretaries of state of the power to make decisions, including in emergencies. And only federal courts would have the power to review gerrymandering or voter suppression claims relating to federal elections.

The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors. Indeed, this isn’t far from the plan attempted by Trump allies following his loss in the 2020 election. And, according to former federal judge J. Michael Luttig — a distinguished conservative jurist — the theory is a part of the “Republican blueprint to steal the 2024 election.”

These high stakes underscore the significance of the challenge the independent state legislature theory presents to the courts.

[iam416]

Talent,

Give me your take on the so-called "independent state legislative theory” ruling.

TIA.

I didn't read the opinion closely, but my general thought was (a) state supreme courts can rule on the validity/legality of the districts; and (b) but I don't think the courts can then actually redraw the districts. So, my view was mostly that redistricting is subject to checks/balances, but the actual line-drawing authority was with the legislature.

So, in the NC case, the Surpeme Court relied on a really vague state constitutional clause ("elections shall be free") that had never, ever been interpretted in this way (certainly not when the Ds were gerrymandering the fuck out of NC) to toss out the districts and remand to a lower court to draw the districts. The issue for the Supreme Court was only the tossing of the districts pursuant to state law. The issue wasn't whether it was proper for the lower court to draw the district (as far as I understand the oral arguments and the syllabus of the case). So, I'm ok with (a) -- which is what they decided. In practice, though, it became (b).

So, what you had was a massive fight between whether the R-Assembly or the D-Courts should draw the districts and the D-Courts took that power for themselves relying on a really vague state constitutional clause. It's a straight political fight. I'm fine with the Courts reviewing districts and voiding them, as needed -- but I'm not fine with the courts then taking that power for themselves.

However, they are both subject to statewide elections, so there is accountability and if the Rs take control of the Court they can reverse the decision as needed.

[AlabamAlum]

Thanks. That was informative.

[Da Geezer]

I didn't read the opinion closely, but my general thought was (a) state supreme courts can rule on the validity/legality of the districts; and (b) but I don't think the courts can then actually redraw the districts. So, my view was mostly that redistricting is subject to checks/balances, but the actual line-drawing authority was with the legislature.

So, in the NC case, the Surpeme Court relied on a really vague state constitutional clause ("elections shall be free") that had never, ever been interpretted in this way (certainly not when the Ds were gerrymandering the fuck out of NC) to toss out the districts and remand to a lower court to draw the districts. The issue for the Supreme Court was only the tossing of the districts pursuant to state law. The issue wasn't whether it was proper for the lower court to draw the district (as far as I understand the oral arguments and the syllabus of the case). So, I'm ok with (a) -- which is what they decided. In practice, though, it became (b).

So, what you had was a massive fight between whether the R-Assembly or the D-Courts should draw the districts and the D-Courts took that power for themselves relying on a really vague state constitutional clause. It's a straight political fight. I'm fine with the Courts reviewing districts and voiding them, as needed -- but I'm not fine with the courts then taking that power for themselves.

However, they are both subject to statewide elections, so there is accountability and if the Rs take control of the Court they can reverse the decision as needed.

If I understand the dissents correctly, the voters in NC had already shifted their SC to the R column and that court had declared the R districting to be constitutional. The dissents said that the case at bar had become mute.

[THE_WIZARD_]

"BIDENOMICS"...illustrated...
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[Dr. Strangelove]

AA - The Roberts opinion (which 5 others joined) doesn't really delve into whether the North Carolina Supreme Court overstepped by redrawing the districts. The opinion is all about whether the Independent Legislature Theory is valid or not. And from my reading they shot it down firmly. And all that's really doing is maintaining the status quo. Legislatures draw districts and set election procedures but those decisions ARE reviewable. Those pushing the ILT suggest that state legislatures have virtually unreviewable power regarding all things concerning federal elections.

The three dissenters think the case should have been adjudged moot and remained silent on the validity of ILT. But obviously Roberts thought that ILT was so aggressively wrong that he convinced ACB and Kav to side with him and speak out against it. At one point he makes a good point saying that if you think ILT is correct then you are elevating a state legislature above the state constitutions themselves.

[Dr. Strangelove]

Specifically Part V-B of the Roberts Opinion expressly states:

We decline to address whether the North Carolina Supreme Court strayed beyond the limits derived from the Elections Clause. The legislative defendants did not meaningfully present the issue in their petition for certiorari or in their briefing, nor did they press the matter at oral argument....Counsel for the defendants expressly disclaimed the argument that this Court should reassess the North Carolina Supreme Court’s reading of state law..

The NC Legislature wasn't arguing that the NC Supreme Court interpreted the law wrong. They were arguing that the NC Supreme Court has no right in the first place to second guess anything the legislature does re: federal elections.

[AlabamAlum]

Thanks, DSL.

[iam416]

If I understand the dissents correctly, the voters in NC had already shifted their SC to the R column and that court had declared the R districting to be constitutional. The dissents said that the case at bar had become mute.

That's right.

[iam416]

At one point he makes a good point saying that if you think ILT is correct then you are elevating a state legislature above the state constitutions themselves.

As noted, I don't agree with the ISLT, but the response to this is that the federal constitution vested in the state legislatures the EXCLUSIVE authority to determine the manner of federal elections. The federal constitution says state legislatures. It does not say state courts. So it isn't that the state legislatures are above the state constitutions, it's that the federal constituion is above state constituons. The federal constitution says exclusive. State constitutions can't undo that. That would be the response.

So, before you even get to the above point, you need to conclude that the federal constitution, in using "state legislatures" -- is referring broadly to state governments. In which case, yes, the above point is forceful. And that's why Roberts spends a ton of time looking at that very question.

But, if you answer the question like Gorsuch might, then that point is irrelevant and the point I made is dispositive.

[WingsFan]

Geez just looked and it's well over 200 up around Cleveland

Detroit was over 300 earlier today. Smoke is traveling all the way to Europe, It's unclear whether it will affect any major outdoor events, such as Wimbledon tennis tournament starting Monday.

https://www.airnow.gov/?city=Novi&state=MI&country=USA

[THE_WIZARD_]

So according to Progs...one of these is bad...one is good...one is harmful...the other...wholesome...
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