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Moore v Harper - Official End of Democracy Watch (1 Viewer)

Article I, Section 4, Clause 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.  

If the redistricting came from the State legislature, then is shouldn't have been struck down by the courts.

The article you cited says this:

Even if state legislatures have exclusive authority to shape a state’s election law, the North Carolina state legislature used this authority to explicitly empower state courts to strike down gerrymandered maps.
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I think what the Supreme Court will say is, yes, the state legislature can grant the state courts the power to hear election related litigation however, the Courts cannot strike down gerrymandered maps if they were maps approved by the state legislature as that violates the Constitution.    

 
Snotbubbles said:
Article I, Section 4, Clause 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.  

If the redistricting came from the State legislature, then is shouldn't have been struck down by the courts.

The article you cited says this:

I think what the Supreme Court will say is, yes, the state legislature can grant the state courts the power to hear election related litigation however, the Courts cannot strike down gerrymandered maps if they were maps approved by the state legislature as that violates the Constitution.    
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Well if they follow years and years of judicial precedent they should rule that the legislative process in each state includes more than just the legislature itself, as explained in the article, but of course this court has proven they are anything but originalists who rely on precedent but instead are partisan  Republican judicial activists.

 
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This latest string of arguments about the supreme court are getting very strongly into "let's kill the messenger" territory.  The plain text of the constitution puts state electoral authority entirely in the hands of state legislatures.  If you pulled somebody from an alien civilization, taught them English, and had them read the constitution, that's what they would tell you that it says.

I can see why that's a problem, but I'm not sure why having rogue state legislatures (today) is obviously a bigger problem than rogue state courts (Florida 2000).  Ultimately, all governments rely on electing/appointing reasonable people.  When that breaks down, no system of constitutional hermeneutics is going to help.

 
IvanKaramazov said:
This latest string of arguments about the supreme court are getting very strongly into "let's kill the messenger" territory.  The plain text of the constitution puts state electoral authority entirely in the hands of state legislatures.  If you pulled somebody from an alien civilization, taught them English, and had them read the constitution, that's what they would tell you that it says.

I can see why that's a problem, but I'm not sure why having rogue state legislatures (today) is obviously a bigger problem than rogue state courts (Florida 2000).  Ultimately, all governments rely on electing/appointing reasonable people.  When that breaks down, no system of constitutional hermeneutics is going to help.
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And yet the Court has read that same plain text for years and not seen it that way. I guess today's justices are just that much smarter.

 
cap'n grunge said:
Well if they follow years and years of judicial precedent they should rule that the legislative process in each state includes more than just the legislature itself, as explained in the article, but of course this court has proven they are anything but originalists who rely on precedent but instead are partisan  Republican judicial activists.
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Therein lies the problem.  What is a "legislature"?  The dissent in Arizona State Legislature interpreted "legislature" from texts around the time the Elections Clause was written.  Federalist papers:

The Federalist Papers are replete with references to “legislatures” that can only be understood as referring to representative institutions. E.g., The Federalist No. 27, pp. 174–175 (C. Rossiter ed. 1961) (A. Hamilton) (describing “the State legislatures” as “select bodies of men”);
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They argue the "the people" isn't a legislative body.  The Constitution uses both the "the people" and "the legislature" in their text and therefore they should not be used interchangeably.  Roberts wrote:

As we put it nearly a century ago, “Legislature” was “not a term of uncertain meaning when incorporated into the Constitution.” Hawke, 253 U. S., at 227. “What it meant when adopted it still means for the purpose of interpretation.” Ibid. “A Legislature” is “the representative body which ma[kes] the laws of the people.” Ibid.; see Smiley, 285 U. S., at 365 (relying on this definition); Colorado Gen. Assembly v. Salazar, 541 U. S. 1093, 1095 (2004) (Rehnquist, C. J., dissenting from denial of certiorari) (same).

AND:

The Constitution includes seventeen provisions referring to a State’s “Legislature.” See Appendix, infra. Every one of those references is consistent with the understanding of a legislature as a representative body. More importantly, many of them are only consistent with an institutional legislature—and flatly incompatible with the majority’s reading of “the Legislature” to refer to the people as a whole.
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Roberts goes on with how the Constitution interprets "legislature".  Nowhere in the Constitution does "legislature" mean to include "the people".  He puts the nail in the coffin of the "legislature" to also mean "the people" with the original draft of the 17th Amendment which unequivocally delineated between the "legislatures" and "the people":

But the most powerful evidence of all comes from the Seventeenth Amendment. Under the original Constitution, Senators were “chosen by the Legislature” of each State, Art. I, §3, cl. 1, while Members of the House of Representatives were chosen “by the People,” Art. I, §2, cl. 1.
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It's pretty obvious that the Framers viewed the "legislature" and the the "people" as separate bodies.  

The actual AZ state constitution even distinguished:

“The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.”
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So the question is, can the state of Arizona violate the Elections Clause and take power away from the legislature and give it to another body.  I don't think it does.  

 
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roadkill1292 said:
I'm seeing some legalistic gobbledy#### to obscure the reality of legislatures deciding not to uphold the people's vote.

We ain't gonna normalize this crap.
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Nor should we.  But that is actually how the constitution is set up, for better or worse.  This is an is/ought thing.

 
I thought this case was one about the state judges rejecting maps because they violated the STATE Constitution, which is written by the state  legislature. :mellow:

Am I thinking of a different case?

 
Grace Under Pressure said:
We’re getting pretty close to “it says right there the State Legislature decides, not the voters”
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Isn't that what this is testing? But even then we'd still need those we voted for to pursue such a path. If the red team votes in a bunch of Gulliani's instead of Pence's then they reap what they sow.

 
Westerberg said:
Hey, if that's what the constitution says, these judges can't be held responsible for their role in the collapse of our society. Right? 
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Wouldn't it be nice if the Supreme Court of the United States was actually a champion for Justice? Really radical idea right? Maybe take into account the real world consequences of their actions in how they respond to cases brought before them that have clear ill intent towards damaging the rights of citizens? Pipe dream I know. Greatest country in the world indeed.

 
MAC_32 said:
Isn't that what this is testing? But even then we'd still need those we voted for to pursue such a path. If the red team votes in a bunch of Gulliani's instead of Pence's then they reap what they sow.
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Except thats not how it works. You can't contain the damage. You're basically legalizing what Trump tried to do in 2020, overturning the will of the people. A handful of state legislatures could simply say screw it there was fraud in our elections (with no proof) and vote to flip their electoral votes to their personal preference. Gerry mandering keeping them in power with no consequences from their citizens. Call me crazy but at some point you need to stop defending a piece of paper written a couple hundred plus years ago and look at the consequences of how you allow it be used for nefarious purposes.

 
cap'n grunge said:
Wouldn't it be nice if the Supreme Court of the United States was actually a champion for Justice? Really radical idea right? Maybe take into account the real world consequences of their actions in how they respond to cases brought before them that have clear ill intent towards damaging the rights of citizens? Pipe dream I know. Greatest country in the world indeed.
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Can you guys stop with the drama already?

You've had things go your way for the last 50 years and one case has sent you over the edge.

You realize that just because things didn't go your way doesn't mean it's the end of democracy, right? I mean, you guys are acting like petulant children. Get hold of your emotions already.  You win some you lose some.

 
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cap'n grunge said:
Except thats not how it works. You can't contain the damage. You're basically legalizing what Trump tried to do in 2020, overturning the will of the people. A handful of state legislatures could simply say screw it there was fraud in our elections (with no proof) and vote to flip their electoral votes to their personal preference. Gerry mandering keeping them in power with no consequences from their citizens. Call me crazy but at some point you need to stop defending a piece of paper written a couple hundred plus years ago and look at the consequences of how you allow it be used for nefarious purposes.
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Then we should probably not vote for people that would do this.

 
BladeRunner said:
Can you guys stop with the drama already?

You've had things go your way for the last 50 years and one case has sent you over the edge.

You realize that just because things didn't go your way doesn't mean it's the end of democracy, right? I mean, you guys are acting like petulant children. Get hold of your emotions already.  You win some you lose some.
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It's pretty interesting how one side of the political divide in this country seems to care about right and wrong and the other only about winning. But yeah, let's denigrate and call standing up for what is right as just being emotional. This case is literally about an attack on Democracy. That's a simple fact. Wasted reply I know but whatever. Enjoy the celebration of America and its values tonight. Maybe spend a couple seconds thinking about what those values are.

 
cap'n grunge said:
It's pretty interesting how one side of the political divide in this country seems to care about right and wrong and the other only about winning. But yeah, let's denigrate and call standing up for what is right as just being emotional. This case is literally about an attack on Democracy. That's a simple fact. Wasted reply I know but whatever. Enjoy the celebration of America and its values tonight. Maybe spend a couple seconds thinking about what those values are.
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Which side are you referring to?

 
cap'n grunge said:
It's pretty interesting how one side of the political divide in this country seems to care about right and wrong and the other only about winning. But yeah, let's denigrate and call standing up for what is right as just being emotional. This case is literally about an attack on Democracy. That's a simple fact. Wasted reply I know but whatever. Enjoy the celebration of America and its values tonight. Maybe spend a couple seconds thinking about what those values are.
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And it's this type if thinking that is problematic in the first place. If a person doesn't even think their side is doing anything wrong, then the problem is you not everyone else.

The Democrats don't care about right and wrong. The Democrats care about money and power.

If you think what the Supreme Court did is an attack on democracy, then I suggest that you're fundamental understanding of how our Constitution works is flawed.

You declaring that this is the end of democracy is exactly the type of emotional response we get which precludes any rational discussions.

 
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roadkill1292 said:
If Congress would ever pass the proposed bill for multi-member districts and proportional representation, this court would probably find a way to shoot it down.
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Why?  The complaint in here seems to be that the court is stubbornly applying the constitution as written, and the constitution (article 1, section 4) seems to allow for exactly what you're describing.  

 
IvanKaramazov said:
Why?  The complaint in here seems to be that the court is stubbornly applying the constitution as written, and the constitution (article 1, section 4) seems to allow for exactly what you're describing.  
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Hey GB...I'm trying to read the substance through the riff raff and I'm a bit confused....is this case going to the SC?  I thought this was a case that took issue with how the district drawing violated the state Constitution.  I'm failing to understand why this is even a federal issue to be addressed.  Your insight would be appreciated.  :thumbup:  

 
The Commish said:
Hey GB...I'm trying to read the substance through the riff raff and I'm a bit confused....is this case going to the SC?  I thought this was a case that took issue with how the district drawing violated the state Constitution.  I'm failing to understand why this is even a federal issue to be addressed.  Your insight would be appreciated.  :thumbup:  
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As I understand it, the issue is that the NC legislature drew a redistricting map, and the NC supreme court threw it out as an illegal gerrymander.  Usually that would be the end of it and federal courts would be unlikely to get involved, but the US constitution has very specific language in Article 1, Section 4 about how states conduct elections:

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.
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After their redistricting map was shot down, some state legislators sued in federal court, arguing that under the plain text of the US constitution, it's up to the NC legislature to determine how elections work, and the NC supreme court doesn't get to overrule them.  SCOTUS is involved because it's an issue involving how we interpret this particular section of the constitution, not anything involving NC law.  

The link in the OP is pretty histrionic and doesn't explain the background of this case much or really at all.  Here's a better summary, and Wikipedia is always good for basic background stuff too.   

 
@cap'n grunge asserts that Republicans don’t care about right and wrong, only about winning. 

@BladeRunner responds that it is the Democrats who don’t care about right or wrong, only about money and power. 

I’m sure we can all find plenty of examples to justify either argument. But we can also find plenty of examples to refute either argument. In any event, I think this sort of rhetoric which impugns the motivations of a whole lot of people is unhelpful. 

 
The Commish said:
Hey GB...I'm trying to read the substance through the riff raff and I'm a bit confused....is this case going to the SC?  I thought this was a case that took issue with how the district drawing violated the state Constitution.  I'm failing to understand why this is even a federal issue to be addressed.  Your insight would be appreciated.  :thumbup:  
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As I understand it (entirely possible this is a gross oversimplification), the plaintiffs are arguing that the federal Constitution determines that state election rules are to be defined solely by state legislatures, such that all other parties, including the governor, state courts, and state Constitution, have no authority on the topic whatsoever.  Therefore, it is impossible for an election rule to violate the state Constitution, as the state Constitution may not be considered in the first place.

 
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I don't know if this part of the "Harper" side of the argument or not, but it seems to me that there's a decent argument lurking there involving the fact that judicial review was never explicitly spelled out anywhere in the constitution, but we all understand that it's implied anyway.  Maybe you could argue by analogy that while 1:4 doesn't explicitly anticipate state courts having a say in state election procedures, the same logic that gave us judicial review at the federal level would apply here at the state level too.  Not sure if that's a good argument or not.

 
IvanKaramazov said:
As I understand it, the issue is that the NC legislature drew a redistricting map, and the NC supreme court threw it out as an illegal gerrymander.  Usually that would be the end of it and federal courts would be unlikely to get involved, but the US constitution has very specific language in Article 1, Section 4 about how states conduct elections:

After their redistricting map was shot down, some state legislators sued in federal court, arguing that under the plain text of the US constitution, it's up to the NC legislature to determine how elections work, and the NC supreme court doesn't get to overrule them.  SCOTUS is involved because it's an issue involving how we interpret this particular section of the constitution, not anything involving NC law.  

The link in the OP is pretty histrionic and doesn't explain the background of this case much or really at all.  Here's a better summary, and Wikipedia is always good for basic background stuff too.   
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Ok...so this IS the case I was thinking of...thanks for indulging my laziness.  As I understand it, this case was brought because the belief was the new maps violated the state constitution.  The state constitution is written/maintained/amended by the state legislature.  When the NC Supreme Court threw the maps out, they were basically saying "you aren't following your own rules".  This is the disconnect for me.  What kind of ruling are they expecting from the SC that is going to help them with this problem?

 
The Commish said:
Ok...so this IS the case I was thinking of...thanks for indulging my laziness.  As I understand it, this case was brought because the belief was the new maps violated the state constitution.  The state constitution is written/maintained/amended by the state legislature.  When the NC Supreme Court threw the maps out, they were basically saying "you aren't following your own rules".  This is the disconnect for me.  What kind of ruling are they expecting from the SC that is going to help them with this problem?
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Good question -- I'm not familiar enough with the facts in the case to have any sort of intelligent answer to that one.  

 
IvanKaramazov said:
Good question -- I'm not familiar enough with the facts in the case to have any sort of intelligent answer to that one.  
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Ok....just wanted to make sure I'm not missing anything.  This whole thing seems like a waste of time.  If they didn't want voting criteria in the Constitution, they shouldn't have put it in.  It seems like the answer here is to amend the state Constitution otherwise the state NC is basically saying "yeah, we wrote the rules and we're deciding not to follow them".  The response from the Fed SC seemed appropriate the first time.

 
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.
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Couldn't one make a fairly solid argument that the above only grants the power to define how/when elections will take place (e.g. Tuesday, 8am-5pm), but not the power to determine which elections will take place (e.g. drawing the districts)?

 
IvanKaramazov said:
Why?  The complaint in here seems to be that the court is stubbornly applying the constitution as written, and the constitution (article 1, section 4) seems to allow for exactly what you're describing.  
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You keep saying this, but the court has not ruled in this manner for a couple hundred years. Again, precedent. What makes the current court so much smarter than all those that came before them?

 
timschochet said:
@cap'n grunge asserts that Republicans don’t care about right and wrong, only about winning. 

@BladeRunner responds that it is the Democrats who don’t care about right or wrong, only about money and power. 

I’m sure we can all find plenty of examples to justify either argument. But we can also find plenty of examples to refute either argument. In any event, I think this sort of rhetoric which impugns the motivations of a whole lot of people is unhelpful. 
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Fair enough. I should not paint with such a broad brush. But in this specific case it's pretty clear who is on the side of justice and who is not.

 
So is the legislature’s argument for this case is that checks and balances at the state level are N/A?  Seems like a pretty lame argument imo but it’ll probably win with this SC anyway.

 
cap'n grunge said:
Fair enough. I should not paint with such a broad brush. But in this specific case it's pretty clear who is on the side of justice and who is not.
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Correct - and to be fair - while it's true that I am on the side of justice on this issue like you're alluding to here, I've actually always been on the side of Justice.  So this really is nothing new for me.   :shrug:

I welcome you to come join me if you dare.  :thumbup:

 
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OK, I haven't been following this too closely, but my understanding is that the reason some on the left are freaking out about this is not because of the specifics of the NC case, or even gerrymandering in general. It's because, if the independent state legislature doctrine is upheld by the court, it enables all kinds of mischief, in particular the right of a legislature to do what Trump was urging them to do in 2020: overturn the will of the voters and substitute their own slate of electors. Whether or not you think that outcome is likely, can we at least all come together to admit that if it did happen, it would be really bad?

 
ignatiusjreilly said:
OK, I haven't been following this too closely, but my understanding is that the reason some on the left are freaking out about this is not because of the specifics of the NC case, or even gerrymandering in general. It's because, if the independent state legislature doctrine is upheld by the court, it enables all kinds of mischief, in particular the right of a legislature to do what Trump was urging them to do in 2020: overturn the will of the voters and substitute their own slate of electors. Whether or not you think that outcome is likely, can we at least all come together to admit that if it did happen, it would be really bad?
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I'm with you.  :thumbup:

However, is that was this case is really about?  I thought it was about the NC Legislature saying that the NC Supreme Court has no jurisdiction in election maps.  Are you just extrapolating that out to the electors?

Maybe I'm just confused.  Probably.  Constitutional Law is not my primary expertise.  :)

 
ignatiusjreilly said:
OK, I haven't been following this too closely, but my understanding is that the reason some on the left are freaking out about this is not because of the specifics of the NC case, or even gerrymandering in general. It's because, if the independent state legislature doctrine is upheld by the court, it enables all kinds of mischief, in particular the right of a legislature to do what Trump was urging them to do in 2020: overturn the will of the voters and substitute their own slate of electors. Whether or not you think that outcome is likely, can we at least all come together to admit that if it did happen, it would be really bad?
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Exactly.  If state legislatures really are in control of the Electoral College, why should we even be allowed to vote in Presidential elections?  And if states districting maps are repeatedly re-drawn for the purpose of retaining majority party control over the state legislature, do we even have an equal vote to exercise at the State level?  What happens when our votes are rendered worthless except for Mayor and school board?   

 
ignatiusjreilly said:
OK, I haven't been following this too closely, but my understanding is that the reason some on the left are freaking out about this is not because of the specifics of the NC case, or even gerrymandering in general. It's because, if the independent state legislature doctrine is upheld by the court, it enables all kinds of mischief, in particular the right of a legislature to do what Trump was urging them to do in 2020: overturn the will of the voters and substitute their own slate of electors. Whether or not you think that outcome is likely, can we at least all come together to admit that if it did happen, it would be really bad?
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Yeah, absolutely.

The problem is that if we altered the specifics of this case a little and turned it into a True Blue legislature whose redistricting map was thrown out by a MAGA state supreme court, 90% of the people chiming in on this topic would instantly switch sides.  That's understandable from a "preserving democracy" standpoint, but it's really terrible from a "interpreting the constitution in good faith" standpoint.

 
ignatiusjreilly said:
OK, I haven't been following this too closely, but my understanding is that the reason some on the left are freaking out about this is not because of the specifics of the NC case, or even gerrymandering in general. It's because, if the independent state legislature doctrine is upheld by the court, it enables all kinds of mischief, in particular the right of a legislature to do what Trump was urging them to do in 2020: overturn the will of the voters and substitute their own slate of electors. Whether or not you think that outcome is likely, can we at least all come together to admit that if it did happen, it would be really bad?
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Exactly. Although gerrymandering in and of itself is awful as well. 

 
BladeRunner said:
I'm with you.  :thumbup:

However, is that was this case is really about?  I thought it was about the NC Legislature saying that the NC Supreme Court has no jurisdiction in election maps.  Are you just extrapolating that out to the electors?

Maybe I'm just confused.  Probably.  Constitutional Law is not my primary expertise.  :)
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You're right that that's what the case is about. But SCOTUS can make any decision as narrow or as wide as it wants it to be. The nightmare scenario I laid out would seem to be a pretty ####ing wide decision, and I'd have a hard time imagining five Justices signing on to it, but who knows?

Anyway, count me in the "not freaking out yet but keeping an eye out" caucus. Which is probably where we should be when it comes to most news stories 

 
IvanKaramazov said:
Yeah, absolutely.

The problem is that if we altered the specifics of this case a little and turned it into a True Blue legislature whose redistricting map was thrown out by a MAGA state supreme court, 90% of the people chiming in on this topic would instantly switch sides.  That's understandable from a "preserving democracy" standpoint, but it's really terrible from a "interpreting the constitution in good faith" standpoint.
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Wrong. I would not support Democrats doing this either. Again, it's a simple matter of right and wrong. Not the same old red team vs blue team stuff.

 
Mookie said:
Exactly.  If state legislatures really are in control of the Electoral College, why should we even be allowed to vote in Presidential elections? 
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I'm really getting into uninformed speculation now, but my understanding is that one argument against the Trump 2020 strategy is that the legislature had already set the terms of Electoral Vote allocation when it scheduled the election in the first place, so they couldn't go back after the election and reallocate them. Which would suggest that they would be on firmer ground as long as they did it before the election. I'd like to think that any state legislators who were crazy enough to disenfranchise their own voters in a presidential election would immediately get voted out of office, but who knows?

 
cap'n grunge said:
Exactly. Although gerrymandering in and of itself is awful as well. 
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It is, although that ship has pretty much sailed. SCOTUS has ruled that, unless a legislature is dumb enough not to cover its tracks, it's not going to throw out a gerrymander. This decision would weaken the power of state courts to do the same, but we're mostly fighting a rearguard action at this point.

 
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