Once again this term, the Supreme Court has backed away from madness:
The Supreme Court on Tuesday rejected the theory that state legislatures have almost unlimited power to decide the rules for federal elections and draw partisan congressional maps without interference from state courts.
....The “independent state legislature theory” holds that the U.S. Constitution gives that power to lawmakers even if it results in extreme partisan voting maps for congressional seats and violates voter protections enshrined in state constitutions.
The vote was 6-3, which is closer than it should have been for this wacky idea, but at least it went down in flames. The whole thing was based on a shiny new conservative theory that when the Constitution says election rules shall be "prescribed in each state by the legislature thereof," then by God that's exactly what it means: the legislature and nothing but the legislature. Governors can't veto election laws; local courts can't overturn them; and voters can't express their will via popular referendums, as they can for all normal laws. The Founders meant this by deliberately omitting "legislature and laws thereof," or some such, from the Elections Clause. That's what the Court rejected today:
The argument advanced by the defendants and the dissent also does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Legislatures, the Framers recognized, “are the mere creatures of the State Constitutions, and cannot be greater than their creators.”
....Were there any doubt, historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. We have long looked to “settled and established practice” to interpret the Constitution. And we have found historical practice particularly pertinent
The whole idea was ridiculous from the start, but it's been gaining steam in right-wing circles ever since Florida courts intervened in Bush v. Gore two decades ago. If today's Court had gone along, it would have meant, for example, that the Florida Republican legislature could have unilaterally decided the 2000 election. It would mean North Carolina could enact its most egregious gerrymandering fantasies with no judicial review. It would mean absolute authority to set rules for things like voter ID laws and absentee voting no matter how ridiculous or racially tinged.
So we dodged a bullet and the Supreme Court demonstrated some common sense and respect for 200 years of freely accepted precedent. Score another one for the good guys.
That's six more names added to the GOP impeachment watch.
That is a relief. Independent legislature theory makes no sense, since state legislatures are created and given their power and parameters by state constitutions, which typically include a governor's veto and judicial review (and state constitutional limits) as part of the constraints on their power. It makes no sense to have the US Constitution empower them to operate outside that scope.
(And technically, states don't even need to have state legislatures, something that the Founders never really thought of. Good luck with a textualist reading in that scenario.)
I guess the states that decide to abolish their legislatures don’t get to have any congressional representation then. DC and the territories could use some company at the disenfranchised “little kids” table.
> And technically, states don't even need to have state legislatures...
Are you sure? I'm not a lawyer, and would be happy to have a lawyer correct me, but Article IV, Section 4 of the Constitution says: "The United States shall guarantee to every State in this Union a Republican Form of Government, ..." I would take that to mean that each state's government has to fit the then-current understanding of "republican" (small "r" !), which would include a popularly elected legislature. My guess is that the interpretation of that clause has never been tested.
I'm just worried that, at some point, the GQP will decide that this means the Democratic and all other political parties must be outlawed. They've been doing everything possible to eliminate competition via voting laws and conduct of elections, so that would be a logical next step.
If conservatives become convinced that they can not win democratically, they will not abandon conservatism. The will reject democracy.
David Frum
And technically, states don't even need to have state legislatures,
That doesn't sound right. All states are guaranteed a "republican form of government" under article 4. My understanding is they don't necessarily need to have a separately-elected governor (they could switch to a parliamentary model and have the legislature select the executive). But they need a popularly-elected legislative body of some sort, no?
Then what would be the limit on how small that legislature could be? Like, representatives in California represent populations larger than some states.
Really, that just means that you have representatives, but a "republican form of government" does not require that those representatives be directly elected. U.S. Senators were not directly elected until the 1910s, and reversing that is one of the maybe-not-so-fringe ideas that pops up on the GOP stage now and then.
So why couldn't Utah, or Idaho, or Oklahoma decide that town councils or district commissions would select their representatives in the state assembly? Sure, two centuries of precedent argue against it, but that's also true for the independent legislature theory.
It also would’ve meant procedural chaos. Something goes wrong in every election - a polling place experiences a power outage inhibiting its ability to report results right away, a locality experiences a natural disaster requiring deadlines for casting a ballot to be loosened, etc. all of which are currently adjudicated by thousands of state and federal courts. The ISLT would require legislators with no experience doing that kind of stuff to be in session on Election Day and ready to make decisions on all that crap. Even if the decisions are all “Republicans win,” the legislature would still need to be in session… which is tough in states like Texas that only have their legislature in session like a few weeks every 2 years.
My question for conservatives is, where in the Constitution does it give state legislatures the right to void or interfere with the national rights of US citizenship?
reintroduction of poll taxes and "literacy" tests would have been the big issue for 2024.
It would have hurt the MAGAs most!
I didn't have to search to figure out who the 3 dissenters were. Obviously, Alito and Thomas. But who'd be the third -- Gorsuch, right? Indeed, it was Gorsuch.
I would have read the dissent, but I've lost all confidence that the far-right is little more than idealogues. Thomas and Gorsuch are conservative idealogues and Alito is a conservative political ideologue who seems to actually believe that IOKIYAR.
If you had read the dissent you would have learned that no one supported the "independent legislature theory" in their ruling. The dissent just argued that the case should have been dismissed as moot because the decision of the NC Supreme Court that was appealed to the US Supreme Court had been overturned already by a later decision of the NC Supreme Court.
Which implies the dissenters wanted to keep the issue alive for future evisceration of democratic norms.
Did you read the dissent?
If so you would have learned that in Section II of Thomas's dissent he makes it pretty clear that if it hadn't been moot he would have dissented anyway.
The Court routinely rejects a case based on a lack of standing, mootness, or a technicality without addressing the underlying issue.
That does not mean that it rejects the underlying issue.
No. They all rejected it for some reason or other
The headline should be that 3 of our Supreme Court justices actually went along with this cartoonishly stupid theory. A unanimous ruling was the only acceptable outcome.
This court is completely broken.
+1
No one "went along with this cartoonishly stupid theory". The dissent argued that the case should have been ruled moot as the original decision by the NC Supreme Court which was the basis of the ruling had already been overturned buy a later decision by the NC Supreme Court).
Section I of Thomas's dissent does say that they dissent technically because the whole thing is moot.
But then in Section II he couldn't help himself, and goes on for pages to say that if it hadn't been moot, they still wouldn't have gone along with the majority.
This was only the first serious attempt.
They never stop pushing - if they happen to stop pushing *this*, it is because they think something else might work better.
if the supremes had gone along with this crackpot theory, the court would have lost the last shred of credibility it might still have. that they took it up in the first place is a stain on the court. alito thinks of himself as something akin to a demigod, to be held above criticism, almost to be worshiped.
I'm pretty sure that's exactly why this term has been something of a return to relative sanity for SCOTUS. The Republican justices know their credibility was badly damaged last term, and at least three of those justices care about it.
Heart of Darkness gets darker still,
The Wagner Group's Blueprint for State Capture in the Central African Republic,
https://thesentry.org/reports/architects-of-terror/
"The vote was 6-3, which is closer than it should have been . . . ."
Keep in mind, the three dissenters here were not necessarily endorsing the wacky Independent State Legislature Theory, but were instead pointing out that the NC Supreme Court flipped partisan control last year and immediately struck down the ruling that gave rise to this case in the first place, so the case is moot. Granted, I have no faith at all in Alito's, Thomas', or Gorsuch's jurisprudence, but these dissents *could* have been based on the merits.
I don't think that's accurate.Thomas' dissent had various parts to it. The first part coverered the "moot issue" but there were other parts and my understanding is that, in those parts, Thomas endorsed the Independent State Legislature Theory. Gorsuch joined the full dissent, Alito only the first (moot) part.
Thank you for this clarification.
The “independent state legislature theory” is hardly "a shiny new conservative theory". Rather it is just another piece of random shit thrown against the wall by right in the hope it might stick.
Those sound like synonyms to me, J.
Great! Now let's see the court stick a fork into the "Omnipotent County Sheriff" fantasy, or whatever the wingnuts are calling it.
The so-called "constitutional sheriff" fantasy. The irony is the constitution doesn't even mention sheriffs.
Why did the current administration want the case considered moot?
https://www.motherjones.com/politics/2023/06/moore-v-harper-supreme-court-rejects-independent-state-legislatures-theory/
the feared a 6-3 ruling in the other direction--why else would the Supreme Court have taken up the case?
I suspect that there is also a dynamic at play where taking away any power from the lower courts would be be seen as an attack on this particular court's own jealously gaurded prerogatives. To paraphrase an old question: Why is this court so petty? Because the consequences are so small.