Skip to comments.'Decision on democracy': Supreme Court unconventionally split on election authority case
Posted on 12/07/2022 12:30:49 PM PST by Red Badger
An unconventionally split Supreme Court heard arguments Wednesday over a Republican appeal to determine whether legislators have the power to set federal voting rules without the oversight from state courts, a consequential question that could drastically change the landscape of future elections.
The 6-3 majority of Republican-appointed justices raised difficult questions about the arguments presented by the counsel for North Carolina's Republican lawmakers, who are essentially asking to remove the power of state courts to strike down legislature-drawn congressional districts following the state Supreme Court ruling the lawmakers illegally gerrymandered.
A broad ruling favoring the Republican lawmakers' argument could require a separate set of rules for federal and state elections on the same ballot and could prompt new efforts to redraw congressional districts to create greater partisan advantages.
However, the majority of justices appeared on track to find a middle ground over the dispute.
The Republican speaker of the North Carolina House of Representatives, Tim Moore, brought up the "independent state legislature theory" after the Democratic-controlled state Supreme Court struck down his party's congressional district map in February. The theory presents a concept in which backers say the U.S. Constitution's election clause gives state legislatures "the federal function of regulating congressional elections" and that states may “not limit the legislature’s discretion."
Arguments on Wednesday, which marked the last case before the New Year, were spearheaded by skeptical questions from the court's three-member liberal minority.
Justice Elena Kagan suggested that the lawmakers’ theory could have “big consequences” that get "rid of the normal checks and balances.” The "independent state legislature" theory, she argued, could allow state legislatures to do extreme gerrymandering and interfere with the certification of elections. Likewise, Justices Ketanji Brown Jackson and Sonia Sotomayor, two other Democratic appointees, appeared adamantly opposed to the lawmakers' position.
Meanwhile, at least three members of the conservative bloc, Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas, appeared more aligned with the theory than the remaining justices, Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts.
"There’s been a lot of talk about the impact of this decision on democracy," Alito said, before asking: "Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districts?"
The high court's final decision, which isn't expected until sometime in 2023, could come down to how convinced Kavanaugh, Barrett, and Roberts are about lawyer David Thompson's arguments, who presented the case on behalf of Moore on Wednesday.
For example, Roberts questioned whether the North Carolina Supreme Court's ruling, which found the 14 congressional districts drawn by Republicans to be "unlawful partisan gerrymanders," is what the highest court had in mind when it decided the March 2019 case Rucho v. Common Cause.
But Roberts also cited a 1932 high court opinion that said the U.S. Constitution is not violated by a governor's veto of a congressional map enacted by the state legislature, suggesting the decades-old precedent "undermines" Thompson's argument.
Kavanaugh and Barrett asked certain questions of Neal Katyal, an attorney for voting rights groups, that appeared to suggest the justices were looking for a ruling favoring the North Carolina lawmakers without flatly adopting the theory.
Katyal was joined by President Joe Biden's Justice Department in opposition to the request by the Republican lawmakers. They urged the justices not to limit the role for state courts and constitutions in regulating federal elections.
After oral arguments, University of Iowa College of Law professor Derek Muller told the Washington Examiner that despite the nearly three-hour discussion, it remains "unclear what the Supreme Court will do."
But Muller noted, "If the legislature wins, it will be a narrow set of circumstances when state courts cannot independently check a state legislature in federal elections."
The "independent state legislature" theory has a range of proponents from outside conservative groups. One proponent is John Eastman, the attorney involved in former President Donald Trump's efforts to overturn the 2020 election, who submitted a brief to the high court in favor of the theory.
Still, Andrew Grossman, an adjunct scholar at the Cato Institute, told the Washington Examiner that the justices' comments put cold water on "overblown claims" by the media that the implications of Moore v. Harper pose a threat to democracy.
"Moore is an important case for democracy because it concerns whether election rules will be made by democratically elected legislatures or by judges. But, as today’s argument reflects, the overblown claims that this case is about stealing elections or disenfranchising voters have no basis in law or reality," Grossman said.
They’re just trying to turn our constitutional republic into a Marxist banana republic.
I would like to see you he Founders original intent implemented again ….... if one does not own property, one cannot vote
Little error above. My apologies
I must be dumber than a rock, because The Constitution seems pretty straightforward to me. The problem lies in LAWYERS, NOT the Law of the Land as given to us by the founding fathers.
That train left the station in 2020.
I heard the “state legislature” argument presented to a Florida House committee in 2000 in Tallahassee in the context of the Bush v. Gore election dispute. It was urged by an attorney for Bush that if the recount and litigation over it would prevent the timely certification of Florida’s electors, the legislature had the power under the federal constitution to simply declare Bush the winner of Florida’s electoral votes.
The legislature appoints the Electors. It's their power, and theirs alone. They can't "declare" anything.
All 50 states have chosen people voting as the method by which their electors get appointed. Congress granted itself 3 Electors in 1960, who are appointed by people voting in the District of Columbia.
But States can revert at any time. There are no "presidential elections" in the Constitution.
The issue in Florida was not declaring Bush the winner. The issue was, if the Florida Supreme Court required recounting in four counties until Gore/Lieberman had a majority, was the Florida Legislature obliged to appoint 29 Gore/Lieberman electors, or, could the Legislature act on its own authority and appoint 29 Bush/Cheney Electors?
This is a similar question posed by the NC redistricting case, and since both cases involve "who is the ultimate authority?", I will not be surprised if the Court rules that it is (of course) the courts.
But the rules regarding Federal elections are clear. State Legislatures make the rules, but Congress at any time can change the rules State Legislatures make.
Of course, the appointment of Electors by a State Legislature is not a Federal election, which is why Article I §4 does not mention it.
We can’t begin to comprehend the differences in Constitutional law reasoning before and after the 17th Amendment of 1913.
No one can prove a negative, but I’ll never believe that state appointed senators would have consented to seating the radical, anti-10th Amendment Leftist judges than began to soil the judiciary since the 1930s.
I believe that Bush lawyer making that argument was Mr. Roberts. But he wouldn’t lift a finger to take up Trumps case.
Since that power is enumerated in the Constitution, I believe that takes a constitutional amendment and not just an act of congress. Otherwise, the dems would have done this decades ago.
Are activist justices possibly working in cahoots with renegade states to stage these cases to deceive MAGA patriots, possibly hoping that patriots don't catch on to Section 2 of 14th Amendment (14A)?
"14th Amendment, Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." [Section 2: Apportionment of Representatives]
"Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
Section 2 is a post-Civil War penalty for states where ballot boxes have been rigged. And Fourteenth Amendment not only gives Congress the express power make laws to discourage ballot box rigging imo, but here is a reference to a fifty five year old federal law (1967) that was intended to discourage gerrymandering, the law based on Section 2 imo.
"On Dec 14, 1967, single-member House districts were mandated by law (2 U.S. Code §2c), under the justification that they served as bulwarks against southern Democrats diluting the electoral power of African Americans by using strategically drawn at-large multi-member districts (they could, for instance, create a single statewide multi-member district elected by plurality vote, all but guaranteeing the white majority would elect all Democrats [emphases added])." —Single-member district
It seems that the referenced law, reasonably based on constitutionally enumerated powers, has somehow escaped the attention of institutionally indoctrinated, anti-constitutional republic RINO justices.
So the real question is this. Why aren't Republican lawmakers in every state demanding federal investigation of alleged ballot box rigging under Section 2 of 14th Amendment?
Doing pretty well too. I am not sure if I am more afraid that they cheated or that they didn't. Sad thing is neither problem is easy if even possible to undo.
There must have been plaintiffs in the original case that led the NC Supreme Court to countergerrymander the legislature’s districting map. Given recent rulings in which neither voters, or candidates, or states, or apparently anyone else have the necessary standing to challenge election fraud in court because they can’t show that they have been harmed, how was it possible for the plaintiffs to have standing in a districting case. What harm had they suffered that wasn’t similar to that rejected in the fraud cases? Anyone have thoughts on this (other than, double standards to benefit the Dems is the way it goes)?
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