The Briefing Room
General Category => National/Breaking News => SCOTUS News => Topic started by: Elderberry on July 01, 2022, 12:46:26 pm
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Politico By Zach Montellaro and Josh Gerstein 6/30/2022
Supreme Court to hear case on GOP ‘independent legislature’ theory that could radically reshape elections
The case stems from the North Carolina Supreme Court's decision this year to throw out the Republican-drawn congressional map for gerrymandering.
The Supreme Court agreed to hear arguments in a case promoting a controversial legal theory that would consolidate elections power in the hands of state legislatures.
Just after releasing its final opinions of the term Thursday, the Supreme Court announced it would take up the closely watched case, Moore v. Harper, brought by North Carolina’s Republican state House speaker, who challenged the state Supreme Court’s decision to throw out the legislature’s congressional maps over partisan gerrymandering.
The North Carolina Supreme Court ruled in February that the state’s congressional maps violated the state constitution by illegally favoring Republicans. The map — drawn by GOP legislators — could have given the party control of as many as 11 of the closely divided state’s 14 districts.
But the Republican legislators argued in an appeal to the U.S. Supreme Court that the state court had extremely limited authority to police the legislature on federal election matters — a theory known as the “independent state legislature” theory.
The theory holds that state legislatures have near-uncheckable authority to set procedures for federal elections — and state courts have either a limited or even no ability to rule on those laws. The theory is based on a pair of clauses in the constitution, the Electors Clause and the Elections Clause, that mention state legislatures but do not explicitly mention the judiciary.
More: https://www.politico.com/news/2022/06/30/supreme-court-gop-independent-legislature-theory-reshape-elections-00043471 (https://www.politico.com/news/2022/06/30/supreme-court-gop-independent-legislature-theory-reshape-elections-00043471)
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I would say follow the Constitution with the knowledge that this won't always work to favor the conservatives.
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I would say follow the Constitution with the knowledge that this won't always work to favor the conservatives.
Quite true! But it WILL always work for Republicanism!
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I hope the challenge is successful. The 4-3 SCNC ruling was blatantly partisan, as was the gerrymandered map the democrat judges enacted. NC Republicans likely can redraw the map next year ... two dem supreme court seats are up for grabs.
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The Supreme Court case voting rights experts say could bring 'chaos' to elections
NBC News By Jane C. Timm 7/2/2022
The high court agreed to take up a North Carolina redistricting case as Republicans seek to remove a major check on the power of partisans to reshape election rules.
A Supreme Court case that will decide the power state legislatures wield over congressional and presidential elections could have far-reaching implications for American democracy, some voting rights experts said.
The Supreme Court said Thursday it would take up a North Carolina case that centers on whether the state's Republican-led Legislature is the only entity that can set the rules for federal elections.
That argument is often referred to as the independent state legislature doctrine, a legal theory that says only state legislators have the authority to set rules for federal elections. Some conservatives have advanced that position in recent years, pointing to a provision in the U.S. Constitution that says the manner of federal elections “shall be prescribed in each State by the Legislature thereof.”
State courts currently have the power to step in if they determine that state legislatures' election rules violate the state constitution or other laws, making them a powerful check and balance on partisan legislatures. Allies of former President Donald Trump made such claims in disputes over the 2020 election, and while state and federal courts largely shot them down, at least four Supreme Court justices have signaled an interest.
More: https://www.nbcnews.com/politics/supreme-court/supreme-court-case-voting-rights-experts-say-bring-chaos-elections-rcna34033 (https://www.nbcnews.com/politics/supreme-court/supreme-court-case-voting-rights-experts-say-bring-chaos-elections-rcna34033)
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The Supreme Court case voting rights experts say could bring 'chaos' to elections
NBC News By Jane C. Timm 7/2/2022
The high court agreed to take up a North Carolina redistricting case as Republicans seek to remove a major check on the power of partisans to reshape election rules.
A Supreme Court case that will decide the power state legislatures wield over congressional and presidential elections could have far-reaching implications for American democracy, some voting rights experts said.
The Supreme Court said Thursday it would take up a North Carolina case that centers on whether the state's Republican-led Legislature is the only entity that can set the rules for federal elections.
That argument is often referred to as the independent state legislature doctrine, a legal theory that says only state legislators have the authority to set rules for federal elections. Some conservatives have advanced that position in recent years, pointing to a provision in the U.S. Constitution that says the manner of federal elections “shall be prescribed in each State by the Legislature thereof.”
State courts currently have the power to step in if they determine that state legislatures' election rules violate the state constitution or other laws, making them a powerful check and balance on partisan legislatures. Allies of former President Donald Trump made such claims in disputes over the 2020 election, and while state and federal courts largely shot them down, at least four Supreme Court justices have signaled an interest.
More: https://www.nbcnews.com/politics/supreme-court/supreme-court-case-voting-rights-experts-say-bring-chaos-elections-rcna34033 (https://www.nbcnews.com/politics/supreme-court/supreme-court-case-voting-rights-experts-say-bring-chaos-elections-rcna34033)
Let's see what the constitution says on the matter.
Article II
Section 1
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
Each State shall appoint, in such Manner as the Legislature thereof may direct..
Don't see anything about courts in that.
Article I
Section 4.
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, except as to the places of choosing Senators.
Still not finding anything about courts. Perhaps someone can direct me to that.
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“The Nightmare Scenario SCOTUS is Plotting For the 2024 Election Takeover” – Fear Mongering Over Upcoming Moore v. Harper Case
Legal Insurrection by William A. Jacobson Sunday, July 3, 2022
Lefty Radio Host Thom Hartmann: “Six Republicans on the Supreme Court just announced — a story that has largely flown under the nation’s political radar — that they’ll consider pre-rigging the presidential election of 2024.”
Here we go again. The End of Democracy. You know, like when the Supreme Court ruled that abortion rights should be determined through the state electoral process, not by federal courts. And when it declared that the EPA could exercise powers over major issues only if the duly-elected Congress clearly enabled such action in legislation. Such a threat!
Here we go again. The politicians and media that brought you those End of Democracy narratives, and the Russia Collusion hoax, have a new demon to spend the next several months foaming about: Moore v. Harper, which the Supreme Court recently agreed to hear next term.
Sounds sooooooo scary. Ian Millheiser at Vox writes, A new Supreme Court case is the biggest threat to US democracy since January 6
The Supreme Court’s announcement on Thursday that it will hear Moore v. Harper, a case that could concentrate an unprecedented amount of power in gerrymandered state legislatures, should alarm anyone who cares about democracy.
The case is perhaps the gravest threat to American democracy since the January 6 attack.
An Op-ed in WaPo is equally dramatic, A new Supreme Court case threatens another body blow to our democracy
So what’s all this fear mongering about? Here’s how the Emergency Application for a Stay, filed by Republicans in February 2022, framed it:
The federal constitution expressly provides that the manner of federal elections shall “be prescribed in each State by the Legislature thereof.” U.S. CONST. art. I, § 4. Yet barring this Court’s immediate intervention, elections during the 2022 election cycle for the U.S. House of Representatives in North Carolina will be conducted in a manner prescribed not by the State’s General Assembly but rather by its courts. “The Constitution provides that state legislatures”—not “state judges”—“bear primary responsibility for setting election rules,” Democratic Nat’l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J., concurring in denial of application to vacate stay), and this Court should intervene to protect the Constitution’s allocation of power over this matter of fundamental importance to our democratic system of government.
In an order entered on February 4, the North Carolina Supreme Court invalidated the North Carolina General Assembly’s congressional maps and remanded to state trial court for remedial proceedings. Rather than seek immediate review in this Court, Applicants engaged in a good-faith effort to craft a congressional map that would be valid under the state Supreme Court’s order. Yet in an order entered on February 23, the North Carolina trial court rejected that map and instead mandated the use of a new map that had been created by a group of Special Masters and their team of assistants—who, to make matters worse, designed their own, judicially-crafted map after engaging in ex parte communications with experts for the plaintiffs. Applicants immediately sought a stay from the North Carolina Supreme Court, but that stay was promptly denied.
If a redistricting process more violative of the U.S. Constitution exists, it is hard to imagine it. Without this Court’s emergency intervention, the North Carolina courts’ unconstitutional, judicially created congressional maps will be used to conduct the May 17, 2022 primary election….
In March 2002, the Court denied an emergency stay over the dissent of three Justices:
Application (21A455) denied by the Court. Justice Kavanaugh concurring in the denial of the application for stay. (Detached opinion). Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting from the denial of the application for stay. (Detached opinion).
Justice Alito, joined by Thomas and Gorsuch, would have granted a stay. Justice Alito’s opinion explained the importance of the issue, and citing to numerous cases arising out of the 2020 election in which the Court declined to resolve it:
I would grant the application for a stay.
This case presents an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections. There can be no doubt that this question is of great national importance. But we have not yet found an opportune occasion to address the issue. See, e.g., Democratic National Committee v. Wisconsin State Legislature, 592 U. S. ___ (2020); Scarnati v. Boockvar, 592 U. S. ___ (2020); Moore v. Circosta, 592 U. S. ___ (2020); Wise v. Circosta, 592 U. S. ___ (2020); Bush v. Gore, 531 U. S. 98, 112 (2000) (Rehnquist, C. J., concurring); see also Republican Party of Pennsylvania v. Degraffenreid, 592 U. S. ___ (2021) (THOMAS, J., dissenting from denial of certiorari); id., at ___ (ALITO, J., dissenting from denial of certiorari); Wisconsin State Legislature, 592 U. S., at ___ (GORSUCH, J., concurring). We will have to resolve this question sooner or later, and the sooner we do so, the better. This case presented a good opportunity to consider the issue, but unfortunately the Court has again found the occasion inopportune.
More: https://legalinsurrection.com/2022/07/the-nightmare-scenario-scotus-is-plotting-for-the-2024-election-takeover-fear-mongering-over-upcoming-moore-v-harper-case/ (https://legalinsurrection.com/2022/07/the-nightmare-scenario-scotus-is-plotting-for-the-2024-election-takeover-fear-mongering-over-upcoming-moore-v-harper-case/)
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The case is perhaps the gravest threat to American democracy since the January 6 attack.
:rolling: :rolling: :rolling: :rolling:
So, according to this idiot writer, actual enforcement of the constitution is a GREAT threat to American democracy! (Stick your democracy up your tailpipe @$$hole! America is, and always has been, a REPUBLIC!)
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What obscure medieval legal theory will Alito pull out his rump for this one?
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What obscure medieval legal theory will Alito pull out his rump for this one?
I STRONGLY suspect that the "medieval" legal theory will be: "The federal constitution expressly provides that the manner of federal elections shall “be prescribed in each State by the Legislature thereof.” U.S. CONST. art. I, § 4.
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What obscure medieval legal theory will Alito pull out his rump for this one?
"Medieval" - prejudge much?
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"be prescribed in each State by the Legislature thereof" ... is this to say that the State Legislature will write the election laws or that the State Legislature can nullify popular elections?
Would it be legal for a State Legislature to pass a law that determined elections by coin flips, talent competitions, or gladiator fights to the death instead of the popular vote?
Does the State Legislature have the absolute right and authority to pass election laws that are contrary to the laws and spirit of Constitutional representative Federal republicanism?
Is the State Legislature the single, absolute Federal election authority in America's Constitutional Federal Republicanism? Or is it a check and balance in a government built upon checks and balances.
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I wonder how this would affect States that fobbed off Redistricting to "independent" Boards?
In AZ, the Legislature has nothing to do with Redistricting, an idea which I always opposed. In 2010 Republicans got shafted by a Board that wasn't independent, but in 2020 we did much better. The 2010 map led to 5 out of 9 safe Dem Congressional Districts.
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"be prescribed in each State by the Legislature thereof" ... is this to say that the State Legislature will write the election laws or that the State Legislature can nullify popular elections?
Would it be legal for a State Legislature to pass a law that determined elections by coin flips, talent competitions, or gladiator fights to the death instead of the popular vote?
Does the State Legislature have the absolute right and authority to pass election laws that are contrary to the laws and spirit of Constitutional representative Federal republicanism?
Is the State Legislature the single, absolute Federal election authority in America's Constitutional Federal Republicanism? Or is it a check and balance in a government built upon checks and balances.
Most of those rhetorical passes do not appear to be relevant to the case at hand.
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"be prescribed in each State by the Legislature thereof" ... is this to say that the State Legislature will write the election laws or that the State Legislature can nullify popular elections?
Would it be legal for a State Legislature to pass a law that determined elections by coin flips, talent competitions, or gladiator fights to the death instead of the popular vote?
Does the State Legislature have the absolute right and authority to pass election laws that are contrary to the laws and spirit of Constitutional representative Federal republicanism?
Is the State Legislature the single, absolute Federal election authority in America's Constitutional Federal Republicanism? Or is it a check and balance in a government built upon checks and balances.
What part of "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, except as to the Places of chusing Senators." do you not understand?
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"be prescribed in each State by the Legislature thereof" ... is this to say that the State Legislature will write the election laws or that the State Legislature can nullify popular elections?
Would it be legal for a State Legislature to pass a law that determined elections by coin flips, talent competitions, or gladiator fights to the death instead of the popular vote?
Does the State Legislature have the absolute right and authority to pass election laws that are contrary to the laws and spirit of Constitutional representative Federal republicanism?
Is the State Legislature the single, absolute Federal election authority in America's Constitutional Federal Republicanism? Or is it a check and balance in a government built upon checks and balances.
The Constitution is silent on any role the Federal Government can have on how elections are run. They aren't supposed to have a say, because if that power isn't enumerated in the Constitution, it's delegated to the several states.
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I wonder how this would affect States that fobbed off Redistricting to "independent" Boards?
In AZ, the Legislature has nothing to do with Redistricting, an idea which I always opposed. In 2010 Republicans got shafted by a Board that wasn't independent, but in 2020 we did much better. The 2010 map led to 5 out of 9 safe Dem Congressional Districts.
If a state legislature validly passed a law that appointed a redistricting commission, and provided that the commission's results would be binding, then that would probably satisfy the requirement of the Constitition.
As I read the matter, the issue appears to be that the NC Supreme Court wrested the redistricting project away from the NC legislature and on its own volition appointed a committee that drew up a new map that the court then ordered NC to comply with.
So the question seems to come down to whether a state court can wrest the redistricting authority away from that state's legislature, and mandate the use of a redistricting map that was not agreed upon by the legislature - in the absence of any enabling legislation that permitted such a procedure - or not.
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What part of "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, except as to the Places of chusing Senators." do you not understand?
... Times ... Places ... Manner ... Elections ... Senators ... Representatives ... BUT ... Congress ... by Law ... make ... alter ... Regulations ... except as to the Places of chusing Senators.
The power of the State Legislature is not absolute, except for choosing Senators, but is checked and balanced by law or regulation from Congress.
The "; but" is grammatically significant.
The Republicans are basing their legal premise on a clause, but not the whole sentence.
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If a state legislature validly passed a law that appointed a redistricting commission, and provided that the commission's results would be binding, then that would probably satisfy the requirement of the Constitition.
As I read the matter, the issue appears to be that the NC Supreme Court wrested the redistricting project away from the NC legislature and on its own volition appointed a committee that drew up a new map that the court then ordered NC to comply with.
So the question seems to come down to whether a state court can wrest the redistricting authority away from that state's legislature, and mandate the use of a redistricting map that was not agreed upon by the legislature - in the absence of any enabling legislation that permitted such a procedure - or not.
Makes sense. In AZ the Redistricting Commission was created by a Constitutional Amendment so nothing would change here.
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The Constitution is silent on any role the Federal Government can have on how elections are run. They aren't supposed to have a say, because if that power isn't enumerated in the Constitution, it's delegated to the several states.
That is incorrect. The federal congress CAN have a say but no courts are mentioned.
@Cyber Liberty
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What part of "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, except as to the Places of chusing Senators." do you not understand?
... Times ... Places ... Manner ... Elections ... Senators ... Representatives ... BUT ... Congress ... by Law ... make ... alter ... Regulations ... except as to the Places of chusing Senators.
The power of the State Legislature is not absolute, except for choosing Senators, but is checked and balanced by law or regulation from Congress.
The "; but" is significant.
:yowsa: It is! CONGRESS! Not courts!
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That is incorrect. The federal congress CAN have a say but no courts are mentioned.
@Cyber Liberty
Yes, I see that in @DefiantMassRINO's post. It's interesting the US Constitution specified State Legislatures, which implies (to me, IANAL) that State Courts are not included in that. We have a SCOTUS which appears to be 5-4 Originalists.
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True, no explicit mention of Federal Courts. But would the Federal Courts be the natural venue for resolving conflict between State Law and Laws of Congress?
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Why is nondelegability being broached?
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I wonder how this would affect States that fobbed off Redistricting to "independent" Boards?
In AZ, the Legislature has nothing to do with Redistricting, an idea which I always opposed. In 2010 Republicans got shafted by a Board that wasn't independent, but in 2020 we did much better. The 2010 map led to 5 out of 9 safe Dem Congressional Districts.
What the legislature giveth the legislature can take away. legislatures that have done this can just as easily undo it.
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True, no explicit mention of Federal Courts. But would the Federal Courts be the natural venue for resolving conflict between State Law and Laws of Congress?
But this was a state court. I don't see them as having any jurisdiction whatsoever.
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True, no explicit mention of Federal Courts. But would the Federal Courts be the natural venue for resolving conflict between State Law and Laws of Congress?
Perhaps. Should CONGRESS choose to exercise the authority granted.
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Gerrymandering is a tough one. Both sides do it whenever they have the opportunity.
State Legislatures generally have wide latitude to draw district lines.
Wouldn't it be incumbent upon the plantiff to prove significant harm recognized by current laws, violation of state law, or violation of state constitution in state court?
Courts can't draw district lines. They can only send it back to the state legislature to redraw the districts to relieve harm, illegality, or unconstitutionality.
The US Supreme Court could only rule that Laws of Congress or The Constitution were violated, and kick it back to the state legislature to correct.
Courts don't legislate.
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What the legislature giveth the legislature can take away. legislatures that have done this can just as easily undo it.
I'm pretty sure in AZ's case it was a Constitutional Amendment. It would take the Legislature and a vote of the people to undo the damage done, and that's as likely as a repeal of the 17th Amendment to the US Constitution.
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Courts can't draw district lines. They can only send it back to the state legislature to redraw the districts to relieve harm, illegality, or unconstitutionality.
From the Legal Insurrection article linked upthread:
In an order entered on February 4, the North Carolina Supreme Court invalidated the North Carolina General Assembly’s congressional maps and remanded to state trial court for remedial proceedings. Rather than seek immediate review in this Court, Applicants engaged in a good-faith effort to craft a congressional map that would be valid under the state Supreme Court’s order. Yet in an order entered on February 23, the North Carolina trial court rejected that map and instead mandated the use of a new map that had been created by a group of Special Masters and their team of assistants—who, to make matters worse, designed their own, judicially-crafted map after engaging in ex parte communications with experts for the plaintiffs. Applicants immediately sought a stay from the North Carolina Supreme Court, but that stay was promptly denied.
According to the part I highlighted, the Courts did exactly what you said they cannot do. They took it on themselves to draw the map.
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I'm pretty sure in AZ's case it was a Constitutional Amendment. It would take the Legislature and a vote of the people to undo the damage done, and that's as likely as a repeal of the 17th Amendment to the US Constitution.
I'll take your word for that but if I lived in Arizonia, I would look into that and see whether or not it is in the Constitution.
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I'll take your word for that but if I lived in Arizonia, I would look into that and see whether or not it is in the Constitution.
I just looked it up: The AZ Independent Redistricting Commission was enacted by a Citizen Initiative, not by Constitutional Amendment. However, an Amendment was passed to force the Legislature to enact Initiatives by the letter so it would take another Citizen Initiative to fix this. The good news is it only would take a simple majority vote and not a 2/3rd vote as an Amendment would require.
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I just looked it up: The AZ Independent Redistricting Commission was enacted by a Citizen Initiative, not by Constitutional Amendment. However, an Amendment was passed to force the Legislature to enact Initiatives by the letter so it would take another Citizen Initiative to fix this. The good news is it only would take a simple majority vote and not a 2/3rd vote as an Amendment would require.
:yowsa:
https://en.wikipedia.org/wiki/Redistricting_in_Arizona
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:yowsa:
https://en.wikipedia.org/wiki/Redistricting_in_Arizona
The first one drawn by the IRDC was 2010, when the "Independent" Chair was a Rat activist that got past the seating process, so it was 3-2 solid Democrat and that's how the Rats got a majority Congressional delegation in a majority Republican state.
In 2020 the GOP was on the warpath from the start on making sure that did not happen again, so we will probably reverse the delegation ratio to 5-4 GOP, possibly even 6-3 GOP if the Red backlash goes well.
This is something that Kelly Ward was instrumental in accomplishing.
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The first one drawn by the IRDC was 2010, when the "Independent" Chair was a Rat activist that got past the seating process, so it was 3-2 solid Democrat and that's how the Rats got a majority Congressional delegation in a majority Republican state.
In 2020 the GOP was on the warpath from the start on making sure that did not happen again, so we will probably reverse the delegation ratio to 5-4 GOP, possibly even 6-3 GOP if the Red backlash goes well.
This is something that Kelly Ward was instrumental in accomplishing.
:thumbsup:
Just for informational purposes, taking a cursory look at the Arizona constitution this morning leads me to believe that the legislature can still put constitutional amendments on the ballot by simple majority vote.
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BTW @Cyber Liberty
Thoughts on Mark Finchem for Arizona SOS?
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BTW @Cyber Liberty
Thoughts on Mark Finchem for Arizona SOS?
Mark was the Keynote Speaker at the Bullhead City annual GOP fundraiser, and he helped us make $18K net. He has my vote, and he'll probably win. The Rat in the race is the former Maricopa County Recorder who was instrumental in the 2020 cheat.
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Mark was the Keynote Speaker at the Bullhead City annual GOP fundraiser, and he helped us make $18K net. He has my vote, and he'll probably win. The Rat in the race is the former Maricopa County Recorder who was instrumental in the 2020 cheat.
OK. Thanks! That rat needs to be gone!
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"be prescribed in each State by the Legislature thereof" ... is this to say that the State Legislature will write the election laws or that the State Legislature can nullify popular elections?
@DefiantMassRINO
I think we can all guess the answer to THAT one.
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A VERY good article here for those who may be interested.
Recovering the Historical Constitution (https://lawliberty.org/recovering-the-historical-constitution/)