Supreme Court rejects fringe elections theory

[LetMyPeopleVote]

This theory never made sense to me

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https://www.msnbc.com/deadline-white-house/deadline-legal-blog/supreme-court-ruling-moore-harper-north-carolina-elections-rcna87123

The Supreme Court rejected the fringe, GOP-backed "independent state legislature" theory in a 6-3 opinion authored by Chief Justice John Roberts.

State legislatures don't have exclusive and independent authority to set federal election rules, Roberts wrote, over dissent from Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.

Heading into this Supreme Court term, which started in October, voting rights proponents feared Moore v. Harper. The elections case from North Carolina raised the fringe theory that could give state legislatures across the country unfettered control over federal elections.

As MSNBC columnist Jessica Levinson explained in December:

If ... the Supreme Court accepts the broadest version of the independent state legislature theory, then state lawmakers will, with few exceptions, have exclusive power to make decisions about federal elections. Those decisions might involve whether there’s early voting, how many polling places there are and where, if voting by mail is allowed and even if the people’s vote for president should be accepted.

But oral argument earlier this term suggested that even a majority of this court wasn't jumping to accept the most extreme version of the theory. Events since the argument, however, raised the prospect of the case going away before it could be decided. That's because North Carolina's Supreme Court, with a new Republican majority hungry to reverse pro-democratic precedents, condoned partisan gerrymandering in an April ruling related to the pending U.S. Supreme Court appeal. Given the intervening developments in North Carolina, the U.S. Supreme Court raised the prospect that the case could be moot and asked the parties to weigh in on its fate. Yet the court said the case wasn't moot and decided it.

[Ocelot II]

1. Marbury v. Madison saved the right of state courts to review state election statutes.

There has been a whole lot of griping on DU about Marbury, but the principal of judicial review is what saved this case from GOPers taking over federal elections in their states without any remedy.

[HelpImSurrounded]

6. MORE Marbury griping? grrr.... I need to pay more attention

[The Magistrate]

8. It Is An Odd Bit, Ma'am

The decision was clearly a political one, intended by Federalist judges to hamstring any 'red revolution' Mr. Jefferson might unleash once in office. Justification was sought for an end desired, and found. The power claimed is not in the Constitution's plain text.

That said, the tool has utility far beyond the aim of its makers. It, or something similar, ought to be in the Constitution, and that it is not is hardly the sole flaw to be detected in the founding document.

So I have no wish to see this ruling over-turned. I do not think this should cast a blinding halo over its origin.

[Ocelot II]

14. The concept of judicial review was established well before Marbury,

and the Court did not invent it. The concept was built into the Constitution through the establishment of equal branches of government.

That particular case had political origins, as many of them do: Following the hotly contested 1800 election, a lame-duck Federalist Congress, wishing to keep the judiciary in Federalist hands, passed the Judiciary Act of 1801, which created dozens of new federal judges to be appointed by Adams before Jefferson could be sworn in. The Judiciary Act also conferred original jurisdiction on the Supreme Court to issue writs of mandamus to to order executive officials to take particular actions. But somehow one of the new commissions, one for Marbury, was not delivered before Jefferson took office. Since this was a Federalist appointment Jefferson ordered it to be withheld, and Marbury sought a writ of mandamus from the Supreme Court to compel the delivery of the commission. The Supreme Court eventually held that Marbury had a right to the commission, since he'd been appointed and confirmed, but held that the section of the Judiciary Act that authorized the Court to issue the writ of mandamus was unconstitutional on the ground that Article III of the Constitution did not allow Congress to give the Supreme Court original jurisdiction over mandamus actions. You can't really say that the Court was trying to hamstring Jefferson, since the Federalist judge Marbury did get his commission.

But judicial review was already a thing; it wasn't created from whole cloth for any anti-Federalist political reasons. As Moore v. Harper points out:

.

Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society’s “fundamental principles.”

https://www.supremecourt.gov/opinions/22pdf/21-1271_3f14.pdf There is an extensive discussion of the history of judicial review beginning at p. 12 of the opinion.

[The Magistrate]

23. We Place Different Weights On The Political Factors, Ma'am

Marshall concocted a superb gambit. Saying Marbury should get the office, while saying his court could not order it, provided a squid's ink of even-handedness to the self-proclaimed power to nullify laws, asserted by a panel of judges openly opposed to the incoming administration. It has an odd echo to the present day, from certain angles.

People may have praised this judicial power at the Constitutional convention, but they did not write it down. They were fully capable of doing so. There's a theological ring to saying this or that is implied somehow when it is not actually stated.

Again, I do not disagree, as a practical matter, with the ability of a court to rule a law void owing to conflict with the nation's fundamental law. But it does not do so by right, but rather by lawless seizure, and that for shabby and reactionary ends at its foundation. That the practice continues in existence owes to a species of adverse possession, because every side of any political battle finds it useful.

[Ocelot II]

33. If you have a better idea for determining whether a law is constitutional, I'd like to hear it, but

if it weren't for judicial review we'd still have de jure segregated schools (Brown v. Board of Education), unreasonable searches and seizures (Terry v. Ohio), poor defendants without lawyers (Gideon v. Wainright), suspects who don't know their rights on arrest (Miranda v. Arizona), prohibited interracial marriages (Loving v. Virginia), and prohibited birth control (Griswold v. Connecticut). We wouldn't have had reproductive rights for the last fifty years in the first place (Roe v. Wade); we still wouldn't have legal same-sex marriage (Obergefell v. Hodges) or same-sex relationships (Lawrence v. Texas). As of today, without the principle of judicial review state legislatures could overturn federal election results if they felt like it (Moore v. Harper). And that's just off the top of my head. Of course there have been bad decisions as well - but as to an awful lot of really important issues it's been the courts that have saved us from the overreach of partisan legislatures. Who else is going to do that, and how?

[The Magistrate]

34. I Repeat, Ma'am: I Do Not Object To Judicial Review

I merely observe it is an extra-Constitutional power, and that Marshall claimed it was his in order to thwart an incoming government he opposed. Like other shabby elements of the country's founding, this ought not be overlooked, or regarded with some glaze which renders Marshall a disinterested jurist rather than the reactionary politician bending the law to gain his immediate ends he was.

I would point out it is only fairly recently that the doctrine has operated in favor of progressive ends. Prior to the New Deal, the doctrine was used almost exclusively to thwart progress: even laws against child labor were ruled a violation of the Constitution. We are now seeing the doctrine again deployed for reactionary ends today, there is no need to recite the sorry toll, or speculate as to further damage likely in the immediate future. Judicial review has been quite as useful to reactionaries as to progressives, and it for this reason it took solid root in our system. Everybody recognized the hilt of the proffered blade, and hoped to be the one wielding it.

[cilla4progress]

28. One reason I love DU...

our erudite posters!

Bookmarking - thank you!

[Comfortably_Numb]

2. Alito, Thomas of course -shitweasels are gonna shitweasel. Fuck Gorsuch too. Totally.

[Eliot Rosewater]

9. Disgusting fucking assholes.

I predicted this would pass 5 to 4 and our elections and democracy would be over, am very very glad to be wrong.

[madaboutharry]

3. Typical of Alito and Thomas,

but Gorsuch is supposed to be smarter than this bullshit.

[bucolic_frolic]

4. Is SCOTUS stepping away from polarizing partisanship?

This is a step toward holding together the Republic. Federal standards. Not a "company town" ruling.

[LakeArenal]

7. Or.... If we give states the rights then SCOTUS loses some of their power to rule the masses?

[BComplex]

11. Lately, it seems, that the supreme court giveth, and the supreme court taketh away.

They appear to have no respect for EVEN THEIR OWN Stare Decisis. They sometimes seem to be talking out of both sides of their mouths.

If this majority saw that they might be losing some of their dictatorial power, they'd reverse themselves in a heartbeat.

[Alexander Of Assyria]

12. As judgment states, no way to get around the precedent, courts CAN review any legislative leap

beyond the red lines.

Although booting boring precedent has been a feature of the radical jurist elements. Not going to make it a cake walk for Putin! Not going to upset the entirety of the history of the rickety relic of white supremacy, the electoral college.

Which is why Loose Cannon can NOT step out of bounds by summary dismissal with zero basis…it’s a pre-worry without Whaley foundation scotus just kicked to the curb…hope Cannon gets it!

[LakeArenal]

17. Hope so. You sound right! 🤞🏼

[EnergizedLib]

5. Give the devils their due

I sure as heck wish Dobbs had been correctly decided, but I was nervous about this case and can breathe a sigh of relief. State legislatures have become out of control.

[LetMyPeopleVote]

18. Thank you Neal Katyal

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[Takket]

10. A great victory for voters and loss for those that want to end elections

Or at least elections COUNTING and mattering

Thank you SCOTUS!!!!

[LetMyPeopleVote]

13. The Moore v. Harper decision effectively eliminates the John Eastman theory of presidential electors

Link to tweet

[Nevilledog]

16. Jeffrey Clark gets murdered by Arnold...lol

[Oopsie Daisy]

15. It should have been unanimous. The fact that 3 dissented is terrifying to me.

[Ocelot II]

22. It's not quite as terrifying as you might think.

The dissent was mostly technical, based on the contention that the issue was moot and the Court didn't have jurisdiction (but why did they grant certiorari, then?). Thomas concluded this was enough of a reason to dismiss the case and thought the merits the majority addressed need not be considered, but then went on about the difference between state procedural and substantive laws, and whether the people of a state are the equivalent of its legislature when it comes to lawmaking, and then complained that the application of judicial review by federal courts to state law issues would be too vague. I think he's got a states-rights thing going and that he's hoping for a case with what he considers a more solid jurisdictional foundation. You can read it here, https://www.supremecourt.gov/opinions/22pdf/21-1271_3f14.pdf beginning at p. 39, but it's pretty boring, angels dancing on the head of a pin. Interestingly, Alito joined only with part I of the dissent, which was about jurisdiction.

[Oopsie Daisy]

25. Your parenthetical question holds merit. Plus, the "try again later" is a dangerous message.

[Ocelot II]

27. True, but even Alito didn't join that part of the dissent.

So I don't think it will go very far.

[WestMichRad]

26. Informative comment, thank you!

[RussBLib]

19. That's good news

Now waiting for the bad news.

[kentuck]

20. The Big Story

Trump and the Repubs were likely going to try to steal a few states in the next election by using the state legislators to choose the electors but the Supreme Court has shot that down. They are not exempt from judicial review.

It is not a happy day in Election Fraud Land.

[cilla4progress]

29. Helpful distillation -

thank you!

[liberalmediaaddict]

21. Alito and Thomas of course voted yes

They'll vote for any right wing extremist, undemocratic case that comes before them. They'll easily go down as 2 of the worst, most corrupt Supreme Court justices of all time.

[LetMyPeopleVote]

24. Statement from Senator Schumer

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[republianmushroom]

30. 6-3 decision

[mwooldri]

31. This should IMO be a 9-0 decision.

That it wasn't demonstrates to me that the SC is supremely messed up.

[LetMyPeopleVote]

32. The 'Independent State Legislature Theory' Is Dead

This makes me smile

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https://www.brennancenter.org/our-work/analysis-opinion/independent-state-legislature-theory-dead

Sanity prevailed today at the U.S. Supreme Court. In Moore v. Harper, six justices issued a near total rejection of the “independent state legislature theory” — a bogus and ahistorical reading of the Constitution that would have stripped important checks and balances out of federal election administration and opened the door wide to extreme partisan gerrymandering and voter suppression.,,,,

Members of the North Carolina legislature appealed directly to the U.S. Supreme Court. They did not contest the state court’s conclusion that the map was gerrymandered. Rather, they argued that the state court had no authority to review the legislature’s actions — that the Elections Clause of the U.S. Constitution grants state legislatures near absolute authority over federal election administration and that neither governors, state judges, nor state constitutions can review the legislature’s actions. In other words, when it comes to federal election administration, there are no checks and balances at the state level.

This was as absurd as it sounds. It lacked any grounding in logic, precedent, structure, or history. For more than 200 years, no one ever read the Elections Clause this way. Indeed, from the very beginning of the republic, governors, state courts, and state constitutions participated in federal election administration. The historical case for the theory is so weak that proponents cited a draft of the Constitution that turned out to be a 19th-century fraud.

The independent state legislature theory would have utterly upended our system of elections. According to Brennan Center research — which was submitted to the Supreme Court for consideration in the case — adopting the theory would have undermined hundreds of state constitutional provisions, hundreds of state court decisions, and more than 650 delegations of authority by state legislatures to other state officials to administer federal elections.

Today, the justices killed off the independent state legislature theory. The Court reviewed the lengthy history of judicial review of election administration at the state level. It recognized that around the time of the founding, some states explicitly granted veto power over the redrawn maps to state governors. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” concluded Chief Justice John Roberts, writing for the majority.

[Cha]

35. Hallelujah!

[LetMyPeopleVote]

36. For this thread

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[LetMyPeopleVote]

37. Today's ruling is arguably also arguably a blow to John Eastman in the fight over his law license.

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