Author Topic: In high-stakes election case, justices will decide validity of “independent state legislature” theor  (Read 542 times)

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Offline Right_in_Virginia

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In high-stakes election case, justices will decide validity of “independent state legislature” theory
SOTUSBblog, Dec 6, 2022

CASE PREVIEW

The Supreme Court will hear oral argument on Wednesday in a case that UCLA law professor Richard Hasen has called the “800-pound gorilla” of election law. The case, Moore v. Harper, is a test of the “independent state legislature” theory – the idea that the Constitution gives state legislatures nearly unfettered authority to regulate federal elections, with little to no interference from state courts. Depending on whether the justices agree with the theory and how broadly they interpret it, it has the potential to upend federal elections by eliminating virtually all oversight of those elections by state courts.

The independent state legislature theory rests on two provisions of the Constitution. The provision directly at issue in Moore, Article I’s elections clause, says that the “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Similarly, Article II’s electors clause says that states shall appoint presidential electors for the Electoral College “in such Manner as the Legislature thereof may direct.” Proponents of the theory argue that, under the plain text of those two clauses, state courts are not authorized to supervise how state legislatures run elections for Congress or the president. Critics argue that neither clause was ever understood – including at the time of the Founding — to confer such unchecked authority on state legislatures.

The Supreme Court has never endorsed the independent state legislature theory in a majority opinion. But the theory made an appearance in a concurring opinion by then-Chief Justice William Rehnquist in Bush v. Gore, the case that halted the recount in Florida in the 2000 presidential election. In an opinion joined by Justices Antonin Scalia and Clarence Thomas, Rehnquist set out his view that the state court’s recount conflicted with the deadlines set by the state legislature and thus violated the legislature’s authority under the Article II electors clause.

And in 2020, the Supreme Court turned down a request by Pennsylvania Republicans to fast-track their challenge to a ruling by the Pennsylvania Supreme Court that, relying on the state constitution, extended the deadline for absentee ballots in the general election. In an opinion that accompanied the court’s order, Justice Samuel Alito (joined by Thomas and Justice Neil Gorsuch) suggested that the state supreme court’s decision to extend the deadline for counting ballots likely violated the Article I elections clause.

Moore began as a challenge in state court to a new congressional map adopted by North Carolina’s Republican-controlled legislature in early November 2021. Democratic voters and non-profits argued that the map violated the state’s constitution because it was a partisan gerrymander – that is, drawn to favor one political party at another’s expense. Specifically, they said, although the state is roughly divided between Democrats, Republicans, and unaffiliated voters, the new map likely would have given Republicans 10 of the state’s 14 seats in the U.S. House of Representatives.


More:   https://www.scotusblog.com/2022/12/in-high-stakes-election-case-justices-will-decide-validity-of-independent-state-legislature-theory/

Offline Right_in_Virginia

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Offline Weird Tolkienish Figure

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Hmph. One of those cases that will fly under the radar but could actually be huge. Like earth shattering huge.

Do we want to live under the tyranny of robed tyrants or not?

Offline Bigun

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FYI  @Bigun

Thanks @Right_in_Virginia I'm aware and paying close attention but, in too many states, the horses are already out of the barn and getting them back is going to be a real chore even assuming they decide correctly.

December 11, 2020 is, to borrow a phrase, a date that will live in infamy.
"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Offline Free Vulcan

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Every election it seems either some board or court completely reverses rules established by the state Legislature at the last minute to help out the Rats.

While I'm not certain if the State Legislature should have absolute power, boards and courts shouldn't just be able to change rules at whim.
The Republic is lost.