A bit of good news about SCOTUS

...but hey, do what you want...you will anyway.

Independent state legislature at the Supreme Court

After three hours of oral arguments at the Supreme Court on Wednesday, only one thing is certain: If the justices want to blow up federal elections, they will have nothing to hide behind—not history, not logic, and certainly not the Constitution. The three lawyers defending democracy methodically dismantled the “independent state legislature” theory from every conceivable angle, debunking each myth, misreading, and misrepresentation deployed to prop it up. They bested the conservative justices who tried to corner them, identifying faulty reasoning and bogus history with devastating precision

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This idea was at the center of Donald Trump’s efforts to overturn the 2020 election, so it was a relief to hear five justices sound deeply skeptical that it has any basis in the Constitution.

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The petitioners are Republican leaders of the North Carolina Legislature. They are angry that the North Carolina Supreme Court struck down the congressional map that they drew after the 2020 census—which was, objectively, an extreme partisan gerrymander. The court found that the map violated various provisions of the North Carolina Constitution, including a guarantee that “all elections shall be free.”

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Scholars of American legal history, particularly in the founding era, have lined up in this case to explain why the ISLT is totally foreign to the laws and traditions of this nation. They have presented overwhelming evidence to support their position, evidence that is not remotely countered by the other side. There are so many political factors in this case. It is haunted by the ghosts of Bush v. Gore and Trump’s coup—both confirmation that the ISLT can be manipulated for scurrilous ends.

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But North Carolina Republicans decided to use this case to achieve a broader GOP ambition: the revival of a long-discredited doctrine known as the independent state legislature theory, or ISLT. This theory rests on the Constitution’s elections clause, which says the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.” It posits that this clause frees the state legislature from restraints imposed by the state constitution when regulating federal elections. Specifically, it would prevent state courts from enforcing those restraints when the legislature passes a law that violates them.

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That’s the argument that the Supreme Court considered, and rejected, in Bush v. Gore. [...] It’s the argument that Trump deployed when he tried to nullify millions of votes in 2020. And it’s the argument that Ginni Thomas, wife of Justice Clarence Thomas, relied upon when lobbying state legislators to appoint “alternate electors” who would support Trump.
  Slate

And that last bit is why Clarence Thomas, were he an honest justice with the integrity you should expect of a Supreme Court justice, would recuse himself. He did not.

If the Supreme Court did adopt the ISLT, it would be flooded with disputes over election procedures, with no principled test to decide each case.

But, of course, they could just decide not to hear those cases, and they don't have to give any reason why.

A number of conservative legal luminaries filed [amicus] briefs in Moore v. Harper opposing it, including Thomas Griffith, a former judge appointed by George W. Bush; J. Michael Luttig, a former judge appointed by George H.W. Bush; Steven Calabresi, a co-founder of the Federalist Society; Ben Ginsberg, a renowned GOP election lawyer; and Charles Fried, Ronald Reagan’s solicitor general. In an unprecedented move, the chief justices of all 50 states’ Supreme Courts urged SCOTUS not to adopt the theory for fear of confusion and mayhem at every level of the judiciary.

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Reasonable Republicans recognize a reality described by Neal Katyal, who argued that “the blast radius” from ISLT “would sow elections chaos,” “invalidating 50 different state constitutions” and countless statutes empowering state courts to regulate elections.

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Katyal faced intense pushback from Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito, three fanatical believers in the ISLT, but he did not yield. He corrected Gorsuch’s bad history when the justice accused him of defending Virginia’s three-fifths clause. [...] He pushed back hard against Alito’s efforts to malign the North Carolina Supreme Court as an out-of-control partisan usurper, explaining that it sought to impose only “ordinary checks and balances.” And he soothed Justice Brett Kavanaugh by assuring him that there could be some “federal judicial review” here, just under a “sky-high standard” of deference to state courts.

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Alito continued to slander the North Carolina Supreme Court by mischaracterizing its precedents, but [Don Verrilli, also opposing the ISLT,] deftly corrected his mistakes. You could actually hear Alito rhythmically thumping the bench, which he tends to do when he tries and fails to pin down counsel.

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By the time [Solicitor General Elizabeth] Prelogar approached the podium, the arguments were pointing toward a rough consensus: In rare, extreme cases, a state Supreme Court might misinterpret an election law so egregiously, so indefensibly, that SCOTUS could intervene. In most situations, though, state courts still get final say over the manner of federal elections.

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In the end, Moore v. Harper probably comes down to Justice Amy Coney Barrett. Thomas, Alito, Gorsuch, and Kavanaugh have all endorsed the ISLT in the past. Roberts, along with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, clearly has no desire to revive it.

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So it was noteworthy that Barrett sounded audibly skeptical throughout Wednesday’s arguments.

Yes, and she sounded fairly certain she wouldn't vote to overturn Roe in her confirmation hearing, but she did.

[Barrett] essentially asked Katyal how the court should write a decision rejecting the ISLT. And she strongly implied to Verrilli that SCOTUS did not even have jurisdiction to hear the case.

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Katyal was in top form on Wednesday, playing both advocate and historian. The ISLT, he explained, is refuted by 233 years of history, “rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice,” and repudiated by the Supreme Court’s precedents. To accept the theory, he told the justices, “you’d have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today.”

...but hey, do what you want...you will anyway.

UPDATE:

I did not realize there was a companion case to Moore v. Harper.  Will this one go to the Supreme Court, too?  Will the Supreme Court's decision in Moore v. Harper have any effect on this one?  I have questions.

Yes, Bob

The answer to your question is yes.

...but hey, do what you want...you will anyway.

h/t Marty

At the Supreme Court

This is a biggie, so I have no doubt SCOTUS will oblige.

UPDATE:  In a nutshell...

UPDATE:  During arguments...

Alas.

UPDATE:

That would certainly be interesting since they were both involved in the Bush v. Gore case arguing in favor of the right to set aside a state's high court decision.

Where the GOP is headed

Outgoing Arizona House Speaker Rusty Bowers (R) has called a failed Republican proposal that would have allowed the legislature to overturn election results in his state akin to “fascism.”

“The legislature, after the election, could dismiss the election,” Bowers said of the proposal, which he effectively killed, according to excerpts of a CNN special report set to air Sunday night. “And I said, welcome to fascism.”

The proposal would have overhauled the state’s election system, eliminating most early and absentee voting and restricting where ballots could be cast.

It would have also made the legislature review the election process afterward, allowing the body to “accept or reject the election results.”

  The Hill

This would effectively reduce all legal authorities to somewhere below state legislators. You have to admit, the GOP had their ducks in a row for the long game. Gerrymander to win control of state legislatures, install "conservative" justices on the Supreme Court by hook or by crook (thanks, Mitch), then give all power over elections to those gerrymandered legislatures. It took a few years, but they were focused. Insane Trumpists may spoil their game in the end by being insane Trumpists. Time will tell, and the elections this November will be another indicator.

Expect more states to try this (and Arizona to try again), especially if the Supreme Court rules in favor of independent state legislatures when they take up Moore v. Harper this term. Something which, unsurprisingly, all state chief justices (they don't want to be demoted!) have signed on to oppose in an amicus brief in Moore.

...but hey, do what you want...you will anyway.

Trying to stop the destruction of democracy

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Moore v. Harper, is the case addressing this issue.  It will be taken up by the corrupt Supreme Court this term.

They're going ahead full speed

There can't be many LESS trustworthy trios with less integrity than Steve Wynn, Karl Rove and Bill Barr.

Burchfield told Reuters Thursday that the group was created in response to expanding court fights over election laws. It has already filed two briefs in election law cases backing state legislatures' ability to change voting rules.

  Reuters

They should be a big help to the Supreme Court next session when they take up Moore v. Harper and likely instate the independent state legislature theory as law.

[Attorney Marc] Elias on Thursday told Reuters he believes the new organization is "fundamentally about making voting harder and opposing voting rights." He said that the state laws the group defends are falsely premised on the idea that fraud is rampant in U.S. elections.

...but hey, do what you want...you will anyway.

UPDATE:

Next time, they won't need an insurrection

The attacks on our democracy are growing more frequent and more pernicious. Lies are turning into laws as Republican state legislatures are enacting new voter suppression laws to combat fraud that does not exist. Election deniers are being recruited to work and even run our state and local elections. Legal theories to deny the right to vote and subvert election results have moved from the extreme fringe toward the mainstream.

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Trump and his allies lost more than sixty separate lawsuits in their effort to overturn election results in more than a half dozen states. He lost before federal trial courts and state appeals courts. He lost before elected judges and those who were appointed, including by him. Most importantly, he lost before the U.S. Supreme Court — a court where he nominated three of the nine justices and where conservatives outnumber liberals 6-3.

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Armed with the ability to interpret state law and to enforce both federal and state constitutions, state judges are in many instances best positioned to protect our democratic institutions and elections.

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That is why so many of us who care about the future of democracy were alarmed to see the Supreme Court agree to consider Moore v. Harper, a North Carolina redistricting case that could shake the foundations of federalism and judicial review and undermine the tools available to protect future elections.

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Republicans are advancing a radical legal theory — the independent state legislature (ISL) theory — that would limit state courts’ ability to interpret their own state’s laws and apply their state’s constitutions to federal elections.

  Democracy Docket

Yes, that's right. If you haven't already noticed, Republicans are only interested in States' rights and limited Federal government when it suits their agenda.

In 2011, the North Carolina Legislature drew a new congressional map that illegally used race to limit the influence of minority voters in congressional elections. After a federal court struck that map down, the Legislature drew an avowed partisan gerrymander to achieve the same result. When that map was challenged, a divided U.S. Supreme Court held in Rucho v. Common Cause that federal law and the U.S constitution did not provide standards for invalidating partisan gerrymanders. Thus, the map survived federal court review.

The easiest thing in the world to avoid racial gerrymandering is to call it political gerrymandering, which for some reason (let's think about it a second) is okay, by relying on the fact that the majority of black people are registered Democrats.

In 2021, North Carolina Republicans again redistricted its congressional maps and again engaged in egregious partisan gerrymandering. This time, taking its cue from the Supreme Court’s ruling in Rucho, plaintiffs sued in North Carolina state court. After significant briefing, expert analysis and testimony, the North Carolina Supreme Court ruled that the map enacted by the Legislature violated the state constitution’s “free and fair elections” clause. The Republican-controlled Legislature then refused to remedy its violation of the state constitution. Instead, its leadership sought Supreme Court review of the decision.

Moore v. Harper.

What makes Moore so potentially dangerous is the fact that Republicans are advancing a radical legal theory — the independent state legislature (ISL) theory — that would limit state courts’ ability to interpret their own state’s laws and apply their state’s constitutions to federal elections. The theory rests on the fact that the U.S. Constitution grants state legislatures the ability to set the “time, place and manner” of congressional elections, subject to an override by Congress. A similar provision gives state legislatures the power to set the “manner” of choosing presidential electors.

In Moore, North Carolina Republicans are arguing that power given to the “legislature” is exclusive to the legislature. In its strongest form, it would exclude a governor’s ability to veto an election bill. In the case of North Carolina, Republicans are arguing that it excludes meaningful judicial review by a state court interpreting its own constitution.

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In 2021, at least 39 voting rights and redistricting lawsuits were decided at the state court level.

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Stripping these courts of the authority to serve as a judicial check on hyper-partisan legislatures will embolden those legislatures to trample on the rights of their citizens and undermine elections. This is what Trump failed to achieve in 2020. An extreme form of the ISL theory is what John Eastman advanced in advising states to disregard the election results. It is not hyperbole to say that the Supreme Court’s decision in Moore may decide whether Eastman, or someone like him, succeeds next time.

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Adoption of this radical theory would transform the power of legislatures to restrict voting rights and weaken democracy. There is no legal theory that is more connected to Trumpism and the failed Jan. 6 coup than ISL.

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Judge Luttig, a measured conservative not known for overstatement recently wrote that “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine.” He is correct. It is that simple.

...but hey, do what you want...you will anyway.

UPDATE: 

Destroying America from within

Over the course of the past week, the court handed down three landmark decisions, each disastrous in its own right. But taken together they reveal a dangerously hidebound court intent on turning the constitution into an instrument of obstruction, a formidable obstacle to solving some of the nation’s most pressing problems.

First, in New York State Rifle v Bruen, the court, by a 6-3 vote, struck down a New York law that required a person demonstrate “proper cause” to carry a concealed handgun.

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A day after its emphatic defense of a right never recognized in over 200 years of constitutional jurisprudence, the court brazenly eliminated a constitutional right that had stood for half a century. In its decision in Dobbs v Women’s Health, overturning Roe v Wade, the court demonstrated how inaptly the label “conservative” applies to the present six-person majority. There is nothing conservative about a court willing to upset established precedent and to radically purge the constitution of a right that had been recognized and affirmed by numerous justices over the course of decades.

Roe, for whatever its weaknesses, recognized that while states have an interest in protecting unborn life, women have a right to “bodily integrity” and “personal autonomy in matters of family” that includes the right to terminate a pregnancy. Roe demanded a delicate act of balancing the state’s interest against a woman’s right, a balance that the court has now eliminated. [...] How a woman deals with an unwanted pregnancy is no longer an issue of personal choice; it is a matter of state control.

Those who defend the Dobbs decision as simply returning the abortion issue to the democratic process (the same democratic process that cannot be trusted when it comes to matters of gun control), overlook the fact that the court has simply eliminated the kind of balancing act often demanded of our most sensitive social problems.

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Finally, in West Virginia v EPA, the same six-person majority held that in passing the Clean Air Act, Congress never granted the Environmental Protection Agency the authority to aggressively regulate the energy industry. While the text of the Clean Air Act authorizes the agency to implement the “best system of emission reduction”, the court concluded that when it comes to “major questions” of “economic and political significance”, Congress must “speak with particular clarity” in authorizing bold regulatory action.

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Never mind that the court invented the “major questions” doctrine out of whole cloth. And never mind that Congress has more than sufficient means for reining in a wayward agency, by, if need be, amending the authorizing statute.

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Congress broadly delegates regulatory power precisely because it lacks the institutional expertise to implement granular and effective policy, and now the court, with even less institutional expertise, installs itself as the last say on the delegated powers of agencies. Most catastrophically, the court’s decision limits the power of the executive branch to address the climate crisis, handing the matter back to a dysfunctional Congress stocked with partisans who continue to deny the very existence of the problem.

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If all this were not bad enough, the court ended its present term by announcing that it had agreed to hear Moore v Harper in the fall. It is widely feared that the case, which involves a North Carolina redistricting plan, will provide the court’s reactionary core the opportunity to adopt the so-called “independent state legislature theory”, a previously fringe notion that the constitution gives state legislatures plenary control over elections, free from the oversight of state courts and regardless of contrary provisions in state constitutions. Adopting this dangerous theory could, for example, give legislators spouting the big lie in swing states the power to determine the outcome of a presidential election.

  Guardian

...but hey, do what you want...you will anyway.