The suppression of voting is gone; “independent legislature theory” is back.
In the previous election, the Democrats employed COVID and a group of progressive, tame judges to interfere with elections across several states. The rules for the registration of mail-in ballots and the ballot drop box were one of the areas in which unelected judges changed the rules of elections just prior to the election, and even as the elections were taking place. The rules that autocrats issued were all based on one thing: that the US Constitution clearly says that the state legislature is responsible for all the “Times, Places and Manner” of federal elections. Although, it is possible that the courts can play a role in determining whether something is constitutional, they do not have any part in the formulation of the rules to choose members of the other branches of the government.
The judiciary, both federal and state, has made a sport of taking over and directing state elections for the past 50 years. Now they have a new challenger. The Supreme Court has agreed to consider a case that will test the limits of the amount of interference judges can have.
In the final days of the session of the Supreme Court, they said they would consider the question of who decides the state’s job in federal elections this fall. The method they chose to use was that of Moore v. Harper. SCOTUSBlog provides background information.
After the Republican-controlled North Carolina legislature adopted a new congressional map in early November 2021, a group of Democratic voters and non-profits went to state court to challenge the map. They claimed, among other things, that since the state is largely divided into Democrats, Republicans, and those who are not affiliated with either party the map – which would likely allow Republicans to gain two seats in Congress and give the Republicans as much as 10 of the 14 seats could have been a result of partisanship, which was in violation of the state constitution.
In February 2022, the North Carolina Supreme Court blocked the state from using the map during the elections of 2022 and required the trial court to accept or adopt a different map by the end of the month. Courts of trial adopted a different map drawn by three experts who were appointed by the judge.
Republican state legislators appeared before the Supreme Court on an emergency basis in February of this year in order to ask the justices to restore the original map drawn by the legislature prior to the state's primary election that took place in May. However, due to a dissent from Alito that was subsequently supported by Thomas and Gorsuch, the court voted on the petition. Both the Alito dissension and the concurring opinion of Justice Brett Kavanaugh, however, deemed “the “independent state legislature” theory an important one with Alito saying that justices “will have to resolve this question sooner or later, and the sooner we do so, the better.”
The lawmakers returned to the court in March to seek a reversal of the North Carolina Supreme Court's ruling that invalidated the map of the legislature and directed a fresh map for 2022's elections. They told the justices the state supreme court's decision is “starkly contrary to the” election clause. The language of the clause, which the legislators insisted on, “creates the power to regulate the times, places, and manner of federal elections and then vests that power in ‘the Legislature' of each State.” The “independent state legislature” question that legislators have emphasized “‘is almost certain to keep arising until the Court definitively resolves it.'” In addition, since North Carolina will use the map that the court has drawn for the 2022 elections to its congressional seats, they suggested that the justices decide the issue in this instance rather than resolve it on a speedy basis in a dispute that has arisen when an election had been held.
Alito's dissent is filled with this precious gem”
And if the language in the Constitutional Clause on Elections is to be taken seriously, then there should be some limits to the power that state courts have to override the actions of state legislatures in setting rules for the conduct of elections in the federal government. It is my belief that the petitioners will be successful in proving how the North Carolina Supreme Court exceeded the limits of its jurisdiction.
It's no surprise that the notion of the Democrat political SWAT team, a group of hyper-partisan progressive judges being sacked prior to elections for president, gave many on the left the Hershey Squirts.
The court case was born in the instance in Davis v. Hildebrant. The question was whether a clause of the Ohio Constitution that allowed citizens to block state elections was in violation of the Elections Clause of the US Constitution. In the end, however, the Supreme Court ruled it did not, as the citizens have the power to implement legislation through the referendum. Since then, the Supreme Court has defined “legislative power” to include the governor's authority when he approves or rejects legislation. The courts at all levels have concluded that they are able to rule on nearly everything related to voting like we saw in 2020.
As a lawyer I'm able to only trust my gut about this particular case. My gut is telling me that this case is better than good.
The first thing to note is that all the right people are angry. It's not an advanced way to think about the legal implications of a case, however, it is reliable. In the event that the main media is writing editorials about it and the more progressive legal analysts predict the demise of democracy, it should be a good thing since I think that democracy is a rather shaky system of government.
Second, words are a way of defining things. The Constitution states that the state legislatures are in charge of the manner of operation, time, and location, so perhaps we should be paying attention to that. In the majority of instances, when we've violated the original Constitution due to our modern-day mentality, we've made things much worse. The tax on income and direct selection of senators comes immediately to mind.
Thirdly, we are aware that judges who are left-wing activists can't resist the urge to tweak rules to benefit their favorite candidates. They do it each election and do it without a trace since they're unaccountable to anyone.
The resentments over 2020 wouldn't have been the case were it not for the fact that it was impossible to simply make up the rules. Bush vs. Gore need never have occurred in the event that Florida was permitted to adhere to its election laws without the intervention of judges. The confusion that surrounds each redistricting attempt can be eradicated when courts were required to keep from political matters. I'm not sure what this means in real life but I'm pretty certain that it won't be any more difficult than what we have now.
