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Supreme Court

Amar and Amar on Independent State Legislatures

forthcoming in the Supreme Court Review

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After various litigation during the 2020 election (now being echoed by the related but different claims in North Carolina), there has been renewed attention and interest to the Constitution's reference to the role of the state "legislature" in setting rules for elections (as Josh notes below).

I wanted to call attention to one such forthcoming piece by Akhil Amar and Vikram Amar condemning the doctrine. The piece is titled Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish, and it will be forthcoming in the Supreme Court Review, for which I am one of the faculty editors.

Here is the introduction:

The biggest news of OT 2020 was what didn't happen: In the run-up to, and aftermath of, yet another tight and hard-fought presidential election, the Supreme Court declined to double down on some of the worst aspects of the execrable Bush v. Gore opinions of twenty years ago.

Yet a close look at the Term reveals that there was a brief moment of genuine constitutional peril, a week when it seemed quite possible that the Court might once againas it did in 2000besmirch itself and plunge the country into a jurisprudential abyss.

In the days preceding the election of 2020, a veritable carnival of litigantslet's call them Bush-Leaguersteed up several cases based on a seemingly plausible but ultimately preposterous constitutional theory that had won the support of three notable justices back in 2000. Echoing the Rehnquist-Scalia-Thomas concurrence in Bush v. Gore, the 2020 Bush-Leaguers correctly noted that Article II authorizes each state "legislature" to decide how that state's presidential electors are to be chosen. From this correct starting point, Bush-Leaguers quickly careened off course, claiming that state courts could not properly tweak state voting laws to bring these laws into alignment with state constitutions (as construed by these state-court jurists). Perilously, four justices at various points in the autumn of 2020 appeared to fall for this beguiling Bush-League ideaan idea often referred to as the "Independent State Legislature" (ISL) theory. None of the other five justices came close to explaining all the reasonsand there are severalwhy this theory fails.

In what follows, we show why Bush-League arguments were wrong twenty years ago; how they were shown to be wrong by sound scholarship in the ensuing years; and why they are even more wrong today, thanks to recent and dispositive Supreme Court case law. All sensible constitutionalistswhether on the Court or off it, whether originalists or precedentalists, whether left or right of centershould bury Bush.

We also aim to demonstrate that the errors and evils of Bush v. Gore went far
beyond the ISL ideas at the heart of the Rehnquist-Scalia-Thomas concurrence. Bush was wrong in just about every way that it is possible for a case to be wrong. If ever there were a bad seed, Bush was it. The recent efforts to revive and rehabilitate Bush's reputation are thus genuine cause for jurisprudential concerneven alarm. We urge today's Court to make a sharp and clean break with Bush as soon as possibleand in any case, well before the next contested presidential election, which may be quite harrowing enough without any monkey business from the Court.

The authors cover a lot of ground, including their disagreements with a recent piece by Michael Morley, which is currently the leading academic defense of some version of the independent state legislature notion.

Beyond Amar & Amar, here are several more articles via The Originalism Blog (1, 2), where Mike Ramsey observes that while he believes ("on a quick reflection") the Amar brothers seem correct, their view may not resolve the current litigation about court-drawn maps:

I haven't looked at this issue closely. On a quick reflection, it seems likely to me that this language was understood to give power to the legislatures of the states, acting pursuant to their (state) constitutional procedures. So there's nothing remarkable about the proposition that early post-ratification state constitutions contained provisions regulating federal elections. But it seems an entirely different matter to have, as the post itself describes it, "congressional maps drawn by [the] state's supreme court." The state supreme court is not the legislature. That's a fundamental proposition of eighteenth century separation of powers. The state supreme court can say, I would think, that a map drawn by the legislature is unconstitutional because it doesn't follow the requirements of the state constitution. But the state court cannot itself draw the map (or order a particular map, other than one drawn by the legislature) to be used. I bet there is no founding era precedent for a state supreme court prescribing the "Times, Places and Manner of holding Elections."

Anyway, it's great to see a renaissance of attention to text, history, and structure on these election law questions. I'm happy the Supreme Court Review will be part of it.

NEXT: Academic Freedom Alliance Letter to San Diego State University

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  1. This debate was interesting in the 1930s, but the Supreme Court, in a series of opinions, directly addressed the meaning of the term "legislature" in the context of Art. I, Sec. 4 of the Constitution.

    But, that was so long ago! Who can be bothered to read court opinions, legal briefs, and law review articles from the 1930s? Especially when they can all be waived away with a citation to a Bush v. Gore concurrence.

    1. The article refers to the U of Illinois. Should an academic law review article sounds like an MSNBC rant? The intemperate language seems anomalous.

  2. My first reaction to this "controversy" was the same as the quoted Mike Ramsey reflection:

    "The state supreme court is not the legislature. That's a fundamental proposition of eighteenth century separation of powers. The state supreme court can say, I would think, that a map drawn by the legislature is unconstitutional because it doesn't follow the requirements of the state constitution. But the state court cannot itself draw the map (or order a particular map, other than one drawn by the legislature) to be used."

    Just like a federal judge can't impose a tax increase on a recalcitrant municipal governing council (though I believe it has been attempted). It can hold the municipality in contempt for not following an order to raise taxes, but the judge is not competent to declare the tax increase on his own authority.

    Everything else is here political posturing, by all sides.

    1. As I think your pointing out, though, the line between rejecting every map that isn't yours and drawing the map yourself can become pretty thin. Eventually, the legislature will want to stop wasting its time and just give in.

      1. At some point, the legislature will probably consider impeaching and removing judges who behave in that fashion, rather than just throwing up their hands and deciding that the court knows better than them.

        1. That does seem the logical conclusion of declaring the judiciary superior over the legislature: That the legislature will move to reassert its authority.

          Similar to the way many state legislatures are moving to rein in local elections authorities after the courts permitted them to override state election laws. You can't expect legislatures to take having their powers usurped lightly, you have to expect them to try to take them back.

        2. Legislatures should impeach judges for their decisions. Those are far more damaging than some trivial corruption gotcha.

    2. That Ramsey quote sounds good and all, but is it supported under state laws and state constitutions? Not necessarily.

      Courts - state and federal - adjudicate cases and controversies and, when warranted, award relief. Federal courts are constrained by the US Constitution in what types of relief they can award. State courts are constrained by state constitutions. The argument that a state court could draw district maps as a form of relief is not unreasonable - one would have to address it by looking to state laws and state constitutions.

      1. Well what is the Supreme law of the land? I thought it was clear that if a state constitution was in tension with the federal constitution the federal constitution prevailed, or are all those gay marriage bans still good law?

        The constitution says "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof", so if the state legislature assigns it to a commission, or does it itself, its good, and the state Supreme Court may strike a map, but it can't say you did it wrong now you have to use ours.

        1. Kazinski, you seem to posit a state legislature with plenary power to draw election maps. I do not think the federal constitution permits that.

          A plenary power to draw election maps implies a power in the state legislatures to exercise the constitutive power. American constitutionalism reserves that power for the sovereign People. The People constrain government. Government never gets to constrain the sovereign will. For instance, you could never draw a properly constitutional election map which denied the sovereign people the power during an election to choose legislators according to their preference.

          1. This is some great gibberish, wish I had seen it earlier.

      2. Of course it's unreasonable. That's what Ramsey's originalist analysis is saying. More specifically, one cannot assume such a power unless *explicitly* granted to a supreme court by state law or constitution. No nebulous appeal to equitable relief for a federally constitutional assignment of authority.

        If a legislature were dumb enough to grant its supreme court this authority under a mere law, it gets what it deserves. If a state's constitution granted the supreme court the power to impose a map after a legislature impasse or bad process, then so be it.

        But absent such an explicit grant, it's anti-democratic (and I believe violates the U.S. Constitution contra the Bush-league argument) for the non-legislative branch of government to usurp this function just because its decision is final (AKA unappealable adapting Justice Jackson's aphorism at the state level, because federal courts can't or won't intervene).

    3. "Just like a federal judge can't impose a tax increase on a recalcitrant municipal governing council (though I believe it has been attempted). It can hold the municipality in contempt for not following an order to raise taxes, but the judge is not competent to declare the tax increase on his own authority."

      Supposing this is true, it still doesn't help us figure out what should happen in the event that the legislature hasn't passed a map that complies with the state constitution and we need to have an election.

      Options:

      1) Use the map passed by the legislature even though it runs afoul of the state constitution. This is what proponents of the ISL argue for, but it seems problematic. The state legislature only exists and is legitimate to the extent that it is an instrument of the constitution. A legislature acting extra-constitutiontionally doesn't seem meaningfully different from some random collection of people declaring themselves to be the legislature and drawing up their own maps.

      2) Some court can draw or select maps. I can see why folks look at the language of the US Constitution and come to the conclusion that this approach isn't valid, either--after all this is a power delegated to the state legislatures. It seems like Constitutional interpretation and precedent over the years nonetheless makes this a viable option depending on the legal framework within the particular state, but in the event that it doesn't work that leaves us with...

      3) What happens if there is no map provided by the legislature? Maybe a legislature that can't pass a Constitutional map is no different from a legislature that just didn't pass a map at all. What happens in this case? We still need to have an election somehow. Is there any precedent? Does the state just lose its Congressional delegation? Does the federal judiciary decide instead of the state judiciary? It would be interesting to know if there were thoughts or precedents here because it seems like something there ought to be an answer for even if it's not the right answer to this particular question.

      1. Best guess: use the last map that was approved (prior to redistricting).

        If you gained or lost a seat in congress in the last census, I could see that being a problem. I suppose you just operate short a congressman (if you gained a seat), or a randomly selected elected congressman is not seated. Should light a fire under such a state legislature's ass to get an acceptable map passed (or possibly just repeal whatever law allows their state supreme court to review their election maps...).

        1. Most of the decisions in question here are based on state constitutions so presumably "changing the law that allows review" is non-trivial.

          I tend to agree that using the last map makes the most sense, but changes in the number of seats seem pretty common so that does complicate the approach. Your mechanisms for dealing with them also seem fine, but someone would have to decide that they're the right remedy which at the end of the day is at least somewhat in tension with the more extreme versions of the ISL.

        2. If you gained or lost a seat in congress in the last census, I could see that being a problem.

          You understand that districts gain and lose population over the course of ten years, right?

      2. The fourth possibility is that no members of Congress are elected for that State.

        If one compares with the President's Article 2 powers to nominate and appoint federal officers, they're worded as a command - "the President shall". But what if he doesn't get round to nominating or, once Senate consent is given, appointing ? There's no legal remedy.

        Perhaps the answer is much the same if the State legislature does not get round to specifying the necessary methods for electing members to Congress, whether through its own fault or because they are baulked by the Governor or the State courts.

        The remedy is political. If a State gets no members in Congress, that's probably going to irritate the voters of that State, and they are going to be peeved at whoever they feel is responsible - which, depending on the circumstances, might be the Legislature, the Governor or the State Supreme Court. Or all of the above.

  3. that darned Constitution!!!!

  4. Strange being so MAD! about Bush v Gore an entire generation later.

    1. Dude. You're still mad about the Warren Court. And the New Deal. And incorporation. And Bork. And you're still saying Dems are the real racists because of southern Dems in the 60s. You're also mad about Marbury.

      Physician heal thyself.

      1. Umm, well Sleepy Joe said he was from a "Slave State", pulled a "Straight Razor"(even Sleepy's choice of weapons is Homo-fobic) on "Corn Pop" (not the most intimidating of Thug names) was against School Bussing (ask his Mule-atto VP, Common-Law Harris), and voted for the "Crime Bill" which imposed drackonian sentences for such low level non violent crimes as Drug Trafficking (only experience is from watching "Scarface", "Miami Vice", and "The Sopranos", seems pretty violent to me...
        and now he's supposedly for Bussing (with todays Segregated Pubic Schools? all you're doing is mixing the country mice of color with the city mice of color) against sending Drug Dealers to jail, and just nominated "Corn Pop's" Granddaughter to the Surpremes... (someone tell Kwanaza her last name's not "Woke")

        Frank

      2. I respond to posts with comments about the subject, I don't rant about Marbury for no reason.

        The Amars are using hysterical language about Bush v. Gore, that goes well beyond disagreeing with its holding or language. MAD about the wrong man being elected.

        Bush-League is rather bush league as an insult as well. I'd never sink that low.

        1. But your comment is absolutely hypocritical. Don’t you see that? Your comment was about how they’re still mad about a bad decision, when you’re still mad about lots of things that happened even longer ago. Again, physician, heal thyself.

        2. It's important to point out that liberal anger, and conservative anger, flow from different sources.

          Liberals are mad because we know that if not for anti-democratic institutions like the electoral college (without which Bush v. Gore would never have been an issue), and the Senate, we'd win far more often that we do. It's not a level playing field, so there's a feeling of being cheated.

          Conservatives are mad because even with all the unfair advantages they get from the Senate and the electoral college, they still can't get most of what they want. So their anger is from a sense of entitlement -- basically the same dynamic as a Karen being told no.

          Once you understand that basic dynamic, it explains a lot.

          1. Liberals and conservatives both mad
            Sounds like a level playing field to me.

            Of course the Senate and EC work exactly as designed in 1787, and 2020.
            Prevent urban populations from ruling the entire nation. What % of the population is urban. The strength of this nation is because the structure promises a level playing field.

            1. Iowatwo, that explanation is straight out of 1984. George Orwell couldn’t have explained it any better.

              1. Why do Amendments have to be approved by 2/3 of the States, and not 2/3 of the voters?
                Because the States are the ones being protected from abuse by the Federal Govt.

                1. Right, so states can continue to abuse and neglect their own citizens. I grew up in the South during the civil rights era, in which states rights was basically a dog whistle for maintaining Jim Crow.

                  1. "I grew up in the South during the civil rights era, WHEN EVERY SOUTHERN STATE HAD DEMOKKKRAT GOVERNORS/LEGISLATURES/SURPREME COURTS."

                    fixed it for ya,

                    1. And if they came back from the dead, today, every one of them would be voting Republican.

                    2. "And if they came back from the dead, today, every one of them would be voting Republican."

                      1) The dead ones always vote Democrat and

                      2) How often did Byrd vote Republican?

                      Of course what you're really mad at is the Constitution and its rules. Don't worry. Once you guys pack SCOTUS with enough AA picks you can get rid of the rest of us.

                  2. You are ignoring the your original issue you claim as a flaw. EC votes and Senate representation.
                    I explained the structure is a design feature. Protecting States, power against a tyrannical Federal Govt.

          2. "Liberals are mad because we know that if not for anti-democratic institutions like the electoral college (without which Bush v. Gore would never have been an issue), and the Senate, we'd win far more often that we do."

            That's a very primitive understanding about how democracies really work. It's inherent that in a two party democracy, the two parties win about equally often: They're not static entities, they're adapting to each other.

            Rather, you'd still be winning about half the time, but the parties would be a little different.

            And, of course, the only reason you're not getting seats in proportion to your votes is that you're choosing to be a party that really, REALLY appeals to urban voters, and leaves rural voters cold, instead of a party that urban voters just like, (but not to the point of having a total monopoly in urban areas!) which rural voters could also stomach.

            You've chosen to be a local party in a system which you know quite well was designed to be disadvantageous to local parties. Why should we sympathize with this decision to handicap yourselves?

            Stop being so relentlessly pro-urban in your policies, and you'll do better outside cities.

            1. Which specific policies would you suggest the Democrats change?

              1. You could support reform of municipal annexation rules, for instance. People living outside cities don't appreciate the city swallowing them up.

                Or stop demanding that people living in areas without water shortages use water sparing appliances.

                Relax pollution rules for wood heat that don't make sense in areas of lower population density.

                A big one would be for cities with high crime rates to stop demanding that people living in low crime areas disarm. (Of course, that's a constitutional issue, too.)

                The general theme here, is stop promulgating rules for high population density areas, and then demanding that lower population density areas live by them, too.

                What's really killing you, though, is demanding that Democrats elected in conservative areas vote party line, rather than according to the views of their own constituents. Basically, you cut off your party's right wing by demanding party line votes on issues that aren't widely popular.

                1. I would be first in line to say that Democrats elected in conservative areas don't have to vote party line if we could also get rid of the two senators per state rule. Have a Senate elected proportionately by population and there would be little need for either party to impose party discipline on its members. Though I will also note that Liz Cheney and Adam Kinzinger might have a thing or two to say about Republicans who don't vote party line too.

                  The problem with rule-making, though, is that it's often very difficult to tailor-make it to everyone's situation. There are probably 15 year olds who are mature enough to hold their liquor, cast informed ballots, and make choices about having sex with 50 year olds, but the system can't decide those things case by case. (Conversely, there are 25 year olds who lack the maturity to do any of those things.) So, we draw bright lines, understanding that it will result in individual situations with unfair results, because it's the best we can do. Once it is granted that pollution is a problem, reducing it becomes more important than whether a specific rule makes sense for someone living in rural South Dakota.

                  And here's what hovers over all of this: rural areas that bitch about the big, bad federal government run on federal money. If big, bad federal government went away tomorrow, taking with it social security, SSI, AFDC, aid to local governments, the cities would suffer but the rural areas would die. This is a fairly blatant example of biting the hand that feeds you, and monumental ingratitude for the party that has made life better for people who live in rural areas.

                  I may have shared this before; I have a sister with multiple disabilities on SSI who votes Republican because she's a racist who hates immigrants. Then she calls me and cries because the Republicans are cutting her benefits and she doesn't know how she's going to survive. Or did, until I told her bluntly that she's getting what she voted for.

                  1. "I would be first in line to say that Democrats elected in conservative areas don't have to vote party line if we could also get rid of the two senators per state rule."

                    I don't think that's materially different from the current, "Our members are free to vote their consciences only so long as we don't need their votes." rule. It's just another approach to demanding that the votes of conservative Democrats don't matter.

                    You really won't be able to appeal to people living across most of America's land until you accept that the cities don't get to rule the whole thing their way.

                    1. It's not a matter of cities ruling; it's a matter of the majority of the American people (many of whom live in cities) ruling. When you dismiss the cities, you're dismissing the millions of Americans who live there. You're basically saying their votes need to be diluted to prevent them from passing policies you don't like.

                      The votes of conservative Democrats should matter; count them along with all the other votes.

                    2. And Brett, this goes back to a comment I made earlier comparing conservatives to Karens. The current system is set up the way it is because conservatives think they're entitled to govern, whether the actual majority of the American people wants them to or not. You're entitled.

                      Democrats don't think that. We think there should be a level playing field in which a New Yorker's vote counts as much as a Kansan's, but we also think that we should have to win the support of the American people in democratic (small d) elections. The party that wins the support of the majority of the American people should be the one that governs. Some years that will be the Democrats; some years it will be the Republicans.

                      But please stop with the crap that conservatives govern because they're entitled.

                    3. "The current system is set up the way it is because conservatives think they're entitled to govern, whether the actual majority of the American people wants them to or not."

                      You're confusing governing, and exercising a veto. We have a two chamber federal legislature: One chamber represents by population, the other by state. Enacting anything requires a majority in BOTH chambers.

                      So, you can't do something at the federal level if a majority doesn't support it, and you can't do something at the federal level if the support isn't spread across a majority of states.

                      But you can leave people alone all day long at the federal level, if you just have one chamber, and content yourself with getting to say what happens in the states you actually have a majority in.

                      Why are you not content with that? With getting your way at the state level, and letting the states you don't have a majority in do their thing, instead of yours?

                    4. But vetoing "is" governing. Forbidding something to happen is just as much a policy decision as making it happen.

                      But that doesn't change the analysis in any event. Democrats think power (including vetos) should be wielded by people who have the majority support of the American people. Republicans think they're entitled to a veto because they're entitled.

                2. This is laughable.

                  Republican state legislatures go out of their way to take power away from municipalities on all kinds of essentially local issues - discrimination ordinances, (recently) Covid measures, schools, voting rules designed to disadvantage urbanites, on and on, and you talk about the poor put upon rural dwellers.

                  It's completely dishonest.

                  1. And Republicans do badly inside cities. Your point?

                    1. His point is that your position is completely dishonest. He's right.

                    2. If you bother to read it you'll know what my point is.

                      And WTF does how Republicans do in cities have to do with anything I said?

                  2. Republican state legislatures go out of their way to take power away from municipalities on all kinds of essentially local issues

                    Your solution is to strip People elected to serve at the State Level, of power in favor of DC politicians....and to get your way, DC politicians that over overwhelmingly will be coastal elites, because that is were the population of the United States is concentrated?

                    For all the things you perceive as flaws, they are nothing compared to rule by DC
                    And not politicians. But the unelected. OSHA forces a vaccine, CDC is controlling your rent, DoJ is monitoring your schoolboard. EPA tells you if you can fill in that wet spot at the back of your property. And the list is endless.

    2. nothing compared to the Roosh-un Cool-lusion Illusion(AKA Bulshi*, HT DJT, AKA "foaty fave"(HT M. Walters, AKA "Crazy Maxine")
      500 years from now It'll be taught like "Beowulf" is today (or at least when I went to Pubic School in the 70's, with CRT, inclusive pronouns, surprised todays kids can read and write (many can't)
      with Hillary Rodman in the Grendel role...

      Frank "Reverend Kirtland, reply if you're a Homo"

      1. I don't know if today's kids can read and write, but you sure could use some work on capitalization and punctuation, not to mention logic.

        1. I don't know if today's kids can read and write,

          The stats are out there, but to see them is to honor the grand federalization of primary education. Somewhere in the area of 25% of high school graduates are not reading and writing at grade level Cities overly represented. Exactly the voters you advocate rule the rest of us.

  5. I am not conversant with the independent legislature debate. The link to the entire article is not working for me.

    Good. I will enjoy those non-constraints by taking a moment to set forward bounds within which I think state election powers ought to be constrained, and explain why.

    The general outline:

    State powers to conduct elections should be of two kinds, first, a power to conduct elections for state and local offices; second, a power to conduct elections for national offices. Different rules should apply. This comment will be about several needed rules for elections to national offices.

    1. Rules for elections to national offices should be as close to uniform as possible, from state to state. States should enjoy greater freedom to set conditions for state and local offices.

    2. State powers to conduct elections for national offices should be limited by federal law to merely ministerial functions—specifically the processes of qualifying voters, collecting ballots, counting votes, and certifying the accuracy of outcomes. Any state action which has power materially to affect the outcome of an election for national office should be ruled a non-ministerial action, and a violation of federal law.

    3. The powers above should be founded on a declaration that the power to vote for candidates for national office is not only a citizen's right, but a sovereign power of the People of the United States. Thus, a certified election result should be treated as a sovereign decree, on par with the Constitution itself.

    4. Every election will be decided by a specific date for its certification. Prior to that date, all questions pertaining to voter qualifications, election procedures, ballot counting, and the overall validity of the election outcome can be contested without penalty by anyone qualified to vote, whether registered to vote or not, and whether an election participant or not. However, legal questions pertaining to the election must be finally settled prior to the certification date. After the certification date, the election result will be sacrosanct and officially unchallengeable, having the same force and effect as the Constitution itself.

    5. All persons who participate in administration of elections to national office, or who legislate conditions for the conduct of such elections, or who administer such elections, or who run as candidates, will be sworn to an oath of two parts. The first part will be a vow to support and defend the ministerial conduct of elections, without attempts to use government procedures to affect outcomes. The second part will be a vow to defend a certified election result as a sovereign decree of the will of the People.

    The oath should also contain a declaration that the person swearing recognizes the will of the People as the highest power in American constitutionalism, and on that basis not to be questioned by national government branches, state governments, any court, or any candidate for office, with the sole exception that the impeachment power in the Constitution remains valid at all times.

    6. Anyone who has sworn the oath to defend election results may not thereafter question the result of a certified election, except on pain of criminal prosecution for violation of his/her oath. Such prosecution will not be ruled a violation of the First Amendment right to free speech.

    However, any person who has not sworn the election oath will remain free at all times, including after the election has been certified, to inquire about the election, and to criticize either the procedures used, the conduct of participants, and the validity of results.

    The general thrust of that set of conditions is twofold:

    First, to establish explicitly that administration of elections to national office cannot be allowed to become political contests, but must remain ministerial functions of government.

    Second, to draw a clear line between the public's right to question government, which ought to be protected at all times, and powers assumed by members of government to question the will of the Sovereign People, which is not a right, and which ought to be proscribed at all times, except during the narrow interval between election day and election certification.

    The method is to use the election oath to establish clearly who are the persons on each side of that distinction, so that the people's powers may be protected, and the electoral powers of members of government properly constrained—and especially not left free to set themselves up as rivals for the People's sovereignty—an act which ought to be counted a crime akin to treason.

    1. "The powers above should be founded on a declaration that the power to vote for candidates for national office is not only a citizen's right, but a sovereign power of the People of the United States. "
      Missed the day they taught "Electrical College" in Pubic School ??(Pubic Universities just as bad)

      because my Pocket Constitution says.... (Article 2 Clause 2)

      "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

      So no matter what the ballot says, you're not voting for "Candidates for National Orifice", but rather "Electors who pledge to vote (and may not, see Hillary Rodman's "Faithless" Erectors in 2016 Erection) for the candidate for a national orifice. )

      that's how "Faithless Erectors" vote for such ridiculous candidates as Faith Spotted Eagle, Ron Paul, Tim Kaine, Colon Powell, and the Obscene Joke candidates such as John Kasich...

      Frank "Constitutional Expert"

    2. All well and good, but every line item in that would require a constitutional amendment to implement.

      1. MatthewSlyfield, what constitutional provisions are violated? Before answering, try to remember that the People are sovereign right now. That means government, including the courts, already lacks power to constrain their will. Please explain how an act of congress making that explicit is unconstitutional.

        1. If the Constitution does not enact Herbert Spencer's "Social Statistics", still less does it enact Stephen Lathrop's views on popular sovereignty.

          1. "Social Statics," Bellmore.

            But indeed, the Constitution does not enact my views on popular sovereignty. Instead, views like mine, held by the founders, were what created the Constitution.

            If you actually suppose that anything in American constitutionalism empowers any part of government to constrain the sovereign will of the People, then just give up and pursue other topics.

    3. The problem here is the constitution in some respects says otherwise. It assigns states a primary role in federal elections. Indeed, at the counding only the House was even elected by popular election.

      The Constitution does give the Congress a role in regulating elections. But by the text it doesn’t apply at all to presidential elector appointnwnts, and if doesn’t apply to polling places for choosing senators either. State legislatures determine congressional districts.

      Constitutional boundaries, not prefered policy boundaries, have to control.

      I think it’s reasonable to say that all legislation has to conform to state constitutional limits. But it’s an arguable position that the courts can’t sinply draw election maps themselves, they have to send defective maps back to the legislature. And if a stste canmy get its act together in time, perhaps it loses its representation.

      1. 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.

        ReaderY, I wonder whether you have interpreted that right. Unless by, "primary role," you only mean the first bite of the apple. To me it says pretty plainly that Congress gets the dispositive role with regard to regulations for choosing congress members, both senators and representatives. Congress is free to let state arrangements stand if it likes them, or to make its own rules if it doesn't. Do you disagree?

        And I cannot see how anyone could argue that congress could not pass an anti-gerrymandering law. Seems like even the Roberts Court conceded that, when it punted the gerrymandering issue by putting it outside judicial purview.

        As for an anti-gerrymandering legal method, I think a requirement for ministerial performance of election-related duties—meaning no notable attempt to affect (let alone, effect) election outcomes—is the best standard possible. It goes directly to judging the tree by its fruit, instead of trying to invent the concept of a tree from scratch—which has been a common source of failure in previous attempts to cope with gerrymandering. It has a further advantage that critics of a gerrymander scheme do not have to be any more discerning than its authors. You cannot accomplish a useful gerrymander without leaving conspicuous evidence of an attempt to affect political outcomes. What is wrong with a ministerial standard as a remedy? What in the constitution says congress could not make that a rule?

    4. I should have scrolled down first, this is even better.

  6. The article is too dramatic. It's not important in the long term which interpretation we use. Of course the next election is always the most important election in the history of the universe and it is necessary to construe the law so the right side wins. But what about five elections from now? I think we end up with fewer problems down the road if do violence to a rule of statutory construction by reading the word "legislature" out of the constitution. Otherwise we get arguments over which sections of a broad election law are limited by the state constitution and which sections are limited only by the federal constitution. But that leaves open the possibility that a state could amend its constitution so the legislature has no role at all. If you have a time machine, point out this problem as well as the 11th amendment problems.

    (In Colorado home rule cities have police powers granted by the state constitution and they can only be overruled by statute on matters of statewide concern. If an election law is judged by the state constitution, the courts can decide whether the state interest weighed against the local interest justifies overruling municipal law. If an election law is judged by the federal constitution, there is no such thing as a city-state and the legislature's judgment possibly preempts the state constitution.)

    1. "I think we end up with fewer problems down the road if do violence to a rule of statutory construction by reading the word "legislature" out of the constitution."

      Reading 'legislature' out is a straw-man argument. The issue is whether the reference to 'state legislature' meant 'state legislatures in the context in which they exist,' which is to say, as a component of a state constitutional government with powers and constraints as enumerated by state constitutions and state laws. Or does it mean 'state legislatures' as some sort of deputized federal entity not subject not to the limitations and constraints of state constitutions and laws, but, instead, subject to the limitations and constrains imposed by federal courts.

      1. In light of the supremacy clause the glaring omission of any such text (in the context in which they exist) argues against such a reading. Where is the evidence that the framers meant to allow state constitutions to trump the command (Shall) of the US Constitution?

        Art 1, Sec 3 The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof...

        Does the above lead one to think that the supreme courts of the several states could themselves choose Senators if the Legislature of a state does not follow the procedure set forth in that state's constitution for choosing Senators?

        1. That's only a convincing argument if we care what "...the framers meant to allow."

          1. You've got it completely backwards. It is the majority of the court who assume that the framers meant in this instance for state judges and state constitutions to be exempt from the supremacy clause.

            1. I'm not sure what I have backwards. I just meant that what the framers meant shouldn't be the be all and end all of constitutional interpretation. Particularly since we don't know really know exactly what they meant in many cases.

              1. Sorry if I read your response incorrectly, maybe you were responding to my hypothetical and not the ISL argument?

                I thought you were responding to the ISL argument and saying it only makes sense of we care what the framers meant. And since we certainly know what is written, what I thought you had backwards is that it is the majority who are relying on what they think the founders meant while it is the dissent who are relying on what is written and simply taking that at face value.

                The majority are placing a whole lot of weight on what they think the framers meant. Maybe the framers specifically designated the state Legislatures but really meant the states as such are to prescribe the rules for holding elections. And maybe the framers meant to exclude art 1, sec 4, clause 1 from the supremacy clause.

    2. I think that’s too extreme a hypothetical. It simply doesn’t follow that if state constitutions can constrain districting legislation, they can take away yhe legislayive power to govern ot entirely.

      That’s a bit like arguing that if legislatures get to set election rules, this necessarily implies the power to bestow and remove the right to vote as they see fit, once you let legislatures have a say, you’ve conceded them absolute power. Of course not. The same holds for state constitutions. Just as the legislature’s power to set voting rules in no way implies a power to completely take away the right to vote, the power of a state constitution to constrain voting rules in no way implies a power to completely take away the right to do districting maps and voting rules.

      The argument is a non-sequitor.

      1. Just as the legislature’s power to set voting rules . . . in no way implies a power to completely take away the right to do . . . voting rules.

        That does not seem written the way you probably intended.

        Let me suggest, however, that you are barking up the wrong tree. The problem is constitutionalism, and how to structure it. You (and many others in this discussion) are muddling the answers.

        Your remarks seem to posit a legislative power at times superior to the power of the sovereign People. You suggest a power in state legislatures to constrain the sovereign, to flatter preferences held by members of the sovereign's government. That turns American constitutionalism upside down. All these problems get easier to solve if you simply insist that in every question touching on the constitutive power—remember that an election is an exercise of the constitutive power—no part of government is empowered to constrain the sovereign will, not even slightly.

        1. Stephen you are being incoherent, if a legislature does something the people don't like, whether mask mandates or gerrymandered election maps, the people vote the legislature out and send new ones.

          Your idea of a sovereign people with powers that are not exercised through or supersedes the legislature is foreclosed by the republican form of government guarantee in the constitution.

          When the legislature acts, it's by and for the people.

          1. When the legislature acts, it's by and for the people.

            That could be, from time-to-time, as a matter of fact. As a matter of principle it is nonsense. If it were true, the people would have zero power to constrain government, and government could violate individual rights with impunity.

            No, that is not the American system. It is not even systematic.

            There really is a popular sovereign—We the People, as it has been styled. That sovereign really is continuously active. Government does not get power to frustrate the sovereign will. The sovereign does constrain government. The Constitution is the sovereign's decree. Government cannot change the Constitution without the sovereign's consent. The sovereign can change the Constitution without government's consent.

            Your idea of a sovereign people with powers that are not exercised through or supersedes the legislature is foreclosed by the republican form of government guarantee in the constitution.

            That hypothesizes the Constitution as a god-like automaton. It is nothing of the sort. It is the decree of the sovereign People, constituting government. It says so. Why would you just ignore that, as if it had no significance? You ought to ask yourself that question, and keep at it until you get some kind of satisfactory answer.

            1. How do you know what the 'popular sovereign' wants?

              1. Always a question, Squirrelloid. And much of the time, if views among members of the joint popular sovereignty are closely divided, and an election is not pending, there may be little guidance from the popular sovereign available to government. When that happens, government muddles through as best it can, or sometimes runs amok. In the latter case, the popular sovereign applies correctives at the next upcoming election, or it might in emergency cases demand impeachments.

                Other kinds of government constraint have also happened. Quite recently, a growing consensus among the sovereign people effected a near-unanimous initiative among state governors to back away from some public health policies.

                Elections are regularly scheduled updates, where the popular sovereign gets to speak via carefully calibrated decrees.

                1. This is all great, one of your greatest threads.

  7. They seem a little... short of dispassionate

    It seems to me there's a certain risk of over-reaction creating an even less grounded Independent Judiciary doctrine, where the judiciary seize control of something that really is the.legislature's domain, by simply declaring that some vague constitutional language mandates whatever the court wants.

    If no one can dispute this claim, the legislature becomes the judiciary's sock puppet.

    1. When there's a growing movement on a judiciary without checks, we can talk.

      For now, lets deal with the actual dumbass anti-democratic argument being made.

      Yeah, I'm down for some melodrama in this case, because this is not about some question of law, this is about a fig leaf as you try and try and wreck our electoral system because your party is increasingly unpopular.

      1. There are already is. The judiciary has no checks, and the left supports it as long as their ox is not being gored.

      2. "anti-democratic argument"

        An argument that says elected legislators and not judges [often appointed] have the final say is "anti-democratic"?

        1. Yes - the purpose of this legislature without checks and balances is so it can ignore the vote of the people in that state.

  8. An essay which employs a concocted slur ("Bush league") in a prominent rhetorical role cannot be taken seriously.

    1. Yeah, the SJWs will boycott this essay.

      I'm down for avoiding language where you can, but lets not pretend the Internet is the entire world.

  9. IIRC, the argument was that not even the State Supreme Court has the power to rule on the powers of its own legislature.

    1. Which is an argument I'm not sure I agree with, but I do think these leftist judges are traitors, and need to be tried as such.

      1. Carl Schmidt, author of “The Fuhrer upolds the law,” could not have said it better.

    2. Not exactly. The argument is that not even the state Supreme court can implement its own election procedures substituting its judgement for the legislature if the federal constitution assigns that responsibility to the legislature.

      There is a big distinction there, legislating from the bench has always been controversial, but it may be allowed by some state constitutions. But if the federal constitution says its up to the state legislature, I think the State Supreme Court van review the legislature judgment, but they can't unilaterally implement a solution that is not passed by the legislature.

      1. The argument is that using the word legislature short-circuits a state's usual legislative process.

        Which is nuts.

        Legislating from the bench is, of course, begging the question.

        1. Legislating from the bench is not begging the question. The state supreme court can say you did it wrong try again, not you did it wrong so we will do it for you, because an act of the supreme court is not an act of the legislature by any means of construction.

          1. You're calling stuff you don't like is legislating from the bench.

            If your issue were truly remedy, then this 'solution' is vastly overtailored. Because your issue is not remedy, it's electoral.

    3. In one small area (federal elections) because the state legislature's authority to regulate federal elections derives not from the state constitution, but from the federal constitution.

      Don't make the other side's argument broader than it is just because you think that makes it easier to knock down.

      1. The small area of federal elections.

        Listen to yourself.

  10. Ultimately, if you agree with the North Carolina Supreme Court's map, what you're saying is that this deceased thug's single mother deserves the same vote that those whose ancestors fought in the American Revolutionary War do.

    https://www.cnn.com/2021/04/26/us/andrew-brown-elizabeth-city-shooting/index.html

    1. Despite your purposefully belligerent language, yes. Each persons vote, within their state, should count equally.

      Why should any one persons vote count more than another persons? If all votes are not considered equal, who gets to decide which votes are less equal?

  11. In a somewhat related issue a federal judge issued an injunction enjoining NC elections board from considering whether Madison Cawthorne was disqualified for being an insurrectionist.

    The interesting thing is he did on the grounds that Congress had already by vote 2/3 had already voided that provision of the 14th amendment, per its provisions, in 1872:

    "Section three of the 14th amendment concludes with a key phrase that refers to the insurrectionist disqualification, or disability: “Congress may by a vote of two-thirds of each House, remove such disability.” Congress did just that, he said, with the Amnesty Act of 1872 that declared, that “all political disabilities imposed by the third section” of the 14th amendment were “hereby removed from all persons whomsoever.”

    1. Maybe that referred to existing disabilities, relating to a past insurrection? If you propose to extend it forward, on what basis does a two-thirds vote of each house actually amend the Constitution, without ratification by the states? I think you have to presume the 14th Amendment stands as written, until actually repealed or amended itself.

      1. Stephen really there isn’t much excuse for not at least looking at what the 14th amendment says, last sentence of section 3 says:

        “But Congress may by a vote of two-thirds of each House, remove such disability.”

        Not only did they do that, they also passed successive insurrection acts that do impose a prohibition on holding office on anyone convicted of insurrection, so Hawthorne isn’t completely in the clear, if he is charged and convicted of insurrection.

        But really do you think it’s a good idea when you have nutcases from both parties calling opponents “traitors” and “insurrectionists” that there should be legal consequences from such wild talk without any judicial process whatsoever?

        I really don’t think you do.

        1. Kazinski, you know that bit about, "no judicial process whatsoever," went out of date this week, right? Court proceedings have determined that a seditious insurrection indeed took place at the Capitol. No wild talk, either. Overwhelming evidence, in multiple cases.

          So sure, election authorities still have to hook Hawthorne up with the insurrection. But given that the question of insurrection is settled, I do not think the standard for Hawthorne continues to be guilt beyond a reasonable doubt, if it ever was. Was it ever the standard that each confederate debarred from office had to be convicted individually, or was it sufficient to just show he had been a confederate?

          I think Hawthorne becomes an insurrectionist for election purposes if he can be shown to have been there and participating, or even if he merely cheered the insurrectionists on. I haven't followed his case at all. Is he in the clear on that basis?

          1. There are no court proceedings on foot against Cawthorn, it doesn't matter how many people are charged with insurrection, he himself has to be charged, and convicted to be disqualified from running for office.

            I ask you again, are you advocating that just wild accusations and innuendo should replace judicial process?

            1. Kazinski, I never think important questions ought to be decided on the basis of wild accusations, or innuendo.

              Do you suppose that sober accusations, based on demonstrable evidence, ought to be insufficient to provide a prima facie (rebuttable) link to an already-established seditious conspiracy? With his presence at the insurrection pep rally, and his repeated public assertions that Trump's election was stolen (including at the rally), Cawthorn does seem to have linked himself to the now-proved insurrection.

              Your assertion that Cawthorn must be charged and convicted criminally seems at odds with the opinion of the North Carolina Attorney General. He has said that based on North Carolina election law, the decision belongs with state election oversight officials.

              I presume you argue otherwise based on federal law, or qualifications of candidates, right? I don't pretend to know how to resolve that kind of disagreement between state and federal law.

              Given the Roberts Court's punt on gerrymandering—which put political question's resolution back with the states—it seems like if North Carolina barred Cawthorn from the ballot, and the case went to the Supreme Court, the Court would have to twist itself into a bad-faith pretzel to order Cawthorn onto the ballot. How would that look like anything but an assertion that under federal law Republicans always win? And under state law Republicans always win? And in the case of disagreements between state and federal law, you decide for whichever party says Republicans win?

              1. No they wouldn't have to twist them into anything the Supreme Court in 1995 in U.S. Term Limits v. Thornton, ruled that states may not add or subtract any qualifications for congressional candidates, it's that simple. State law can not disqualify a congressional candidate.

                1. The 14th Amendment is not a state law.

                2. The NC state law isn't adding any new qualifications, it is just giving the state board of elections the power to enforce the qualifications already laid out in the 14th amendment.

              2. I'm no fan of Cawthorne, but I'd require a conviction before barring him from running for office.

                1. If you were on the NC state election board, you would be free to use that standard to determine your vote. But the NC law does not require that. And in fact, it puts the burden of proof on the candidate to prove that the challenge is not true. Strange law.

    2. I personally think the insurrection claims are silly, but this is still a bad ruling. No way was that 1872 act effectively repealing Section 3, that's an absurd claim. It had no effect on fresh disqualifications stemming from new acts.

      1. Well I thought and still think Congress passing a criminal Insurrection act with disqualification, imprisonment, and fines made it clear the process with subsequent acts of insurrection, and obviously section 5 left it up to congress.

        But I see no reason to think Congress couldn't immunize subsequent acts of insurrection if they wanted to under section 3 with broad enough language and a 2/3 vote as required in section 3.

        And certainly I thought North Carolina requiring a candidate to disprove allegations of law as well as fact is absurd. How do you disprove being an insurrectionist when the law is poorly defined, and you haven't been charged or convicted of any act in any case?

        1. How do you disprove being an insurrectionist when the law is poorly defined, and you haven't been charged or convicted of any act in any case?

          With regard to an insurrection already proved? With irrefutable evidence that you linked yourself to that insurrection? Seems impossible to disprove. Based on those facts, what do you suggest?

          1. Now, that's a totally silly answer.

            We don't say, "We already proved that the bank was robbed, and have irrefutable evidence that you were "linked" to the robbery. Off to jail with you!"

            No, you get your trial, where they actually have to prove that YOU robbed the bank. Not merely assert the existence of irrefutable proof you were, in some vague fashion, linked to the robbery.

            1. Nobody has yet suggested a criminal conviction for Cawthorn. So what is your comment about? What makes you think standards of proof which apply to criminal prosecution have anything to do with North Carolina ballot access? For that matter, do you have anything to show that criminal standards of proof were required before confederate insurrectionists could be barred from running?

              1. Well, it's true that they weren't requiring criminal convictions in that instance.

                It's also true that people generally agreed that there had been a civil war, rather than that belief being confined to one party. And you had objective evidence of participation such as military rosters, rather than just wild accusations coming from, again, one party. So winning a criminal trial would have been fairly easy.

                The basic issue here is that you can get away with a shortfall of procedural protections if you just won a bloody civil war, and are deciding how to deal with the crushed and helpless foe. You don't need to persuade the people on the other side that you're treating them fairly; What, after all, are they going to do, if they don't like how they're being treated? They're already crushed and broken, and all out of capacity to fight you! So you can skip the procedural niceties.

                Now, if you're dealing with a nation at peace, where the elections are fairly close, and the faction you're trying to go after have the support of a major party and a significant fraction of the electorate, you might just care if the faction you're going after think they're getting a fair shake, you might want to deny them reasons to think they're being railroaded, because it's not all that clear who'd win if you provoked them too much.

        2. I'm not saying "an" injunction was inappropriate. I just think "this" injunction's reasoning was absurd. Sure, Congress could effectively neuter Section 3 until a future Congress acted, by a sufficiently broad immunization act.

          But the 1872 act wasn't plausibly that broad.

  12. Cant get around the fact.
    There is no such thing as a federal election.

    If the constitution was written that way, it would have never been ratified. The federal govt was created to serve at the pleasure of STATES.
    Power needs to be stripped from DC, not double down on DC securing even more power.

    1. The federal govt was created to serve at the pleasure of STATES.

      Another person who didn't pay attention in high school and thinks we're still operating under the Articles of Confederation.

      1. There is no such thing as a Federal election.
        Except for President, Elections are state elections, choosing who to send to DC to represent the People of the State.
        House elections were for representation of the People.
        The Senate represented the States...until the 17th amendment.

        1. Correction. Even the President is a state election of Electors

          The founders spent a lot of effort to rest Power in the the States, and the People. NOT the federal govt.

          1. Iowatwo, after those electors get elected in their states, do those electors just go home, and count their work done? Or do they go on to do one other little piece of business? It's the latter, right? And that piece is to cast their votes in a federal election for president. The nation does have a federal election for president. It is just doing it wrong.

  13. The Wisconsin state legislature appoint a Special Counsel (a retired judge of the WI Supreme Court) to investigate the 2020 election. He has now released two separate reports detailing the massive amount of fraud which occurred there, the most recent one being published just a week ago. He also described the difficulty he has faced in getting evidence from the various parties involved.

    One might wonder, if the election was so clean and above board, exactly why the election authorities in WI and around the country continue to fight like hell and defy their own state governments in order to avoid turning over records pertaining to said election.

    If you would like to read his report for yourself - since the regular press and this website clearly have zero interest in covering his findings - search for "Second Interim Investigative Report On the Apparatus & Procedures of the Wisconsin Elections System".

    1. "One might wonder, if the election was so clean and above board, exactly why the election authorities in WI and around the country continue to fight like hell and defy their own state governments in order to avoid turning over records pertaining to said election."

      One might wonder, if the investigation was so clean and above board, exactly why the office of special counsel continues to fight like hell and defy its own state government in order to avoid turning over records pertaining to said investigation?

    2. There were recounts in Wisconsin and two independent reports on the 2020 election. The first by the Wisconsin Legislative Audit Bureau acting for Wisconsin's Republican controlled Legislature. The second by the conservative Wisconsin Institute for Law and Liberty. Both investigation and reports found the 2020 election results were valid.

      The Special Counsel's report has an audience of one, the former President. I have read the report and noted that it presents no facts to support that election fraud happened. It is filled with inaccuracies. It is worth noting that most Republicans have walked away from the report rather quickly.

  14. "... the 2020 Bush-Leaguers correctly noted that Article II authorizes each state "legislature" to decide how that state's presidential electors are to be chosen. From this correct starting point, Bush-Leaguers quickly careened off course, claiming that state courts could not properly tweak state voting laws to bring these laws into alignment with state constitutions (as construed by these state-court jurists)."

    If we're going to permit "state court jurists" to rewrite state election laws - and do so AFTER an election has been held and while ballots are being counted - then we make a mockery and an irrelevance of both state election laws and elections themselves. The worn-out fig leaf of "bringing laws into alignment with state constitutions" does not suffice. If the laws were genuinely not aligned with the state constitution the vaunted "state court jurists" had several years prior to the election to notice this failing. The fact that they were rewriting election law while ballots were still being counted in a transparent effort to assist Al Gore should have resulted in their impeachment and removal from the bench.

  15. The fact that they were rewriting election law while ballots were still being counted in a transparent effort to assist Al Gore should have resulted in their impeachment and removal from the bench.
    Yes. The Florida Supreme court ordering a state wide recount, they had no power to demand.
    But it does bring into focus it is the courts scared to death to allow the legislature the opportunity to exercise their constitutional power.
    The Florida Supreme court feared the clock would run out on the Sec. of State would not have time to certify the votes. By state Constitution, Sending the naming of electors to the state House of Representatives.

  16. A key component of our democracy is the idea of checks and balances that should guide leaders in the executive, legislative and courts to best solution. If you create conditions where one branch of government at a nation, state, or local level has no checks you would be inviting tyranny.

    State legislatures should have the power to write election rules, but there must be a mechanism to challenge rules for cause.

    1. The state constitution is the check on the legislature.

      What more do you want?

      Or do you think putting the federal legislature in charge of selecting people to come to DC is better than the State Legislature electing them?

      1. The state constitution is the check on the legislature.

        What more do you want?

        A court having the power to make the legislature follow the constitution.

        It's no check at all without some enforcement.

    2. The problem is that, if you have a mechanism where the judiciary can unreviewably declare election rules to have violated the state constitution, you've empowered the judiciary to effectively write the rules itself if it choose to issue such declarations abusively.

      Unreviewable power always ends up abused in the end.

      1. Yeah, in the legislative process someone has to be final. We choose for that to be the branch that checks the constitutionality of legislative action.

        You would prefer a political branch that in a bunch of states is currently pretty excited about overturning elections in favor of your side.

        Maybe take the implications of this a bit more seriously.

  17. The problem is that, if you have a mechanism where the judiciary can unreviewably declare election rules to have violated the state constitution, you've empowered the judiciary to effectively write the rules itself if it choose to issue such declarations abusively.

    The problem is that, if you have a mechanism where the legislature can create unreviewableelection rules, you've empowered the legislature to effectively ignore the state constitution.

    Look, Brett. We all know you think the Democrats stole the election by changing the rules to (shudder) make it easier to vote. You hate the idea that urban residents vote. That's all you're about here.

    1. "We all know you think the Democrats stole the election by changing the rules"

      By violating the rules, not changing them.

      I'm not saying the legislature's rules aren't reviewable. I'm saying that, for federal elections, the state supreme court can't have the last word, the state legislature needs to have recourse to the federal courts when they think the state judiciary is pulling a fast one in the case of a federal responsibility assigned specifically to the legislature.

      1. State supreme courts have the last word on state constitutional issues.

        I think you can work out why.

        1. That kind of begs the question, I think. Brett's argument is that these state laws concerning elections to federal office violate the federal constitution. I'm not really convinced, but it arguably gives a constitutional hook for federal court jurisdiction.

          1. Brett's opinion doesn't matter though - federal courts have already weighed in and disagree with his take on the federal constitutional question.

            Additionally, he is using his opinion to justify this interpretation of the constitution where judicial review doesn't apply to state election laws. Because in his opinion the judicial review was bad.

            We need to be a country that has a protocol it follows - of laws not men. We know right now which institution is charged with doing what thing - passing laws, state constitutional review, federal constitutional review, executing state laws, executing federal laws.

            Brett is advocating for changing that around to cut our the parts that have in the past disagreed with his opinion.

  18. "The problem is that, if you have a mechanism where the legislature can create unreviewable election rules, you've empowered the legislature to effectively ignore the state constitution."

    1)The supremacy clause of the US Constitution overrides state judges and state constitutions.

    2)The US Constitution designates the state legislatures as the entity to make election rules.

    3)The plain text of the US Constitution provides a mechanism that is not perfect since the only check on the state legislatures is the vote.

    In response to the above, the majority of SCOTUS have ordained a scheme that is plainly at odds with the text of the Constitution and is much worse in terms of its ability for review. SCOTUS refuses to review state supreme court decisions regarding state constitutions, therefore state legislatures have no means of appealing a state supreme court's decision and no means of vindicating the authority that was plainly granted to them by the Constitution.

    SCOTUS has taken an imperfect situation and made it a farce.

  19. I don’t get how this ISL theory is supposed to work in practice.
    Suppose
    1) legislature draws map
    2) state supreme court says the map violates the state constitution
    3) state supreme court’s decision is correct as a matter of law
    4) legislature says we don’t care whether it’s legal or not, we like our map and we’re sticking to it and you can’t do anything about it because of our ISL theory.

    What happens under this ISL theory? Is their no remedy for a map that, in this hypothetical, violates the state constitution?

    Further question, why would “time place and manner” apply only to election maps? Why wouldn’t this theory apply to a vast range of state election rules?

    1. 5) It goes to federal court, because under ISL theory #3 is a federal, not just state, question, because the legislature is exercising a federal, not state, power.

  20. Hypothetical:
    Suppose a provision of a state constitution granted the authority to make election law to a select committee, say retired judges. Could the state supreme court nullify an election law made by the state legislature based on such a state constitutional provision?

  21. "What happens under this ISL theory? Is their no remedy for a map that, in this hypothetical, violates the state constitution?"

    By ISL, there is no remedy but to remove the bums in the next election. This is so because the Constitution designates the state legislature and supremacy clause states plainly that "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

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