Voter suppression has been lifted; the “independent legislative theory” is back.
During the previous election, Democrats used COVID along with a group of moderate, progressive activist judges in order to take over elections across several states. Unelected judges changed the rules regarding the certification of mail-in ballots, and other areas while ballots were being counted. These rules were all made by autocrats. According to the US Constitution, the federal legislature is responsible for the conduct of federal election elections. Although courts might have some authority to declare something not constitutional, the court has no power whatsoever to write rules that govern how another branch of government is elected.
The judiciary, federal and state, has made a sport out of taking over and managing state elections for about 50 years, and now the Supreme Court has agreed to hear a case testing the limits of how much meddling judges can do.
At the conclusion of its last term, the Supreme Court declared that it would continue to examine the question of who decides who during federal elections this Fall. They chose to use the case of Moore against Harper .. SCOTUSBlog gives us the background.
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 contended among other things that, because the state is roughly divided between Democrats, Republicans, and unaffiliated voters, the new map – which likely would have allowed Republicans to pick up two more seats in Congress, giving them as many as 10 of the state’s 14 seats – was a partisan gerrymander that violated the state’s constitution.
In February 2022,, the North Carolina Supreme Court stopped the state’s use of the map during the 2022 election and directed the trial court either to approve or to adopt a different map by the end the month. Three court-appointed experts drew a new map that was adopted by the trial court.
Republican state legislators came to the Supreme Court on an emergency basis in late February, asking the justices to reinstate the legislature’s original map before the state’s primary election, which took place on May 17. The request . was rejected after a second dissenting opinion by Alito, joined again by Thomas and Gorsuch. The Alito dissension and an concurring opinion from Justice Brett Kavanaugh called the theory of the independent state legislature an important question. Alito added that justices would have to answer this question “immediately or else, and the earlier we do, the better .”
The legislators went back to court in March seeking review of North Carolina Supreme Court’s decision that invalidated the map. They also requested a map revision for the 2022 election. The legislators told the court that the order by the state supreme Court was in direct contradiction to the election clause. The text of that clause, the legislators insisted “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, the legislators stressed “‘is almost certain to keep arising until the Court definitively resolves it.'” And because North Carolina will use the map created by the court for its 2022 congressional elections, they continued, the justices should resolve the question in this case, rather than having to do it on an expedited basis in a dispute arising after an election has already occurred.
Alito’s dissent contains this gem.
If the Elections Clause language is to be taken seriously, then there should be some limitation on state court authority to override actions taken state legislatures in establishing rules for federal election conduct. It is probable that applicants will succeed in proving that North Carolina Supreme Court has exceeded these limits.
It is obvious that the idea of the Democrat SWAT team of hyper-partisan progressive judges being sacked before the next election was a catalyst for many leftists to feel like Hershey squirts.
This case was inspired by the 1916 Davis vs. Hildebrant. It was a question of whether an Ohio Constitution provision that allows citizens to veto election laws in their state violated the Elections Clause. It did not, the Supreme Court decided because people have the ability to exercise legislative power via a referendum. The Supreme Court has since defined legislative power as the Governor’s ability to sign or veto legislation. All levels of courts have confirmed that they are able to decide on almost all aspects related to voting. We saw this in 2020..
I am not a lawyer so I have to trust my instincts. It is more positive than negative, my gut instinct tells me.
First, the right people are mad. This is not a mature approach to examining legal cases with major import. However, it is reliable. It’s not all bad that the main media is running anti-democratic editorials and the progressive legal analysts are forecasting the demise of democracy. I think democracy to be a very poor form of government.
Second – words can mean different things. We should be aware that the Constitution states that state legislatures have control over time, place and manner. We’ve often made matters worse by ignoring the original document. I immediately think of the income tax and direct electing senators.
Third. We know leftwing activist judges won’t stop trying to tweak rules in order to favor their favorite candidates. Because they don’t have to answer for their actions, they continue doing it each election.
The bitterness over 2020 wouldn’t have occurred if the rules could not be changed. Bush Vs. Gore would never have occurred if Florida allowed its elections laws to be followed without the intervention of judges. If courts had to be kept out of electoral politics, the confusion that comes with every redistricting attempt would end. Although I am unsure how it would actually work, I believe that this is a better solution than the current situation.