There's a lot of good content in here and you did well to talk about the legal theory as well as its implications.
I wanted to comment on how much the style of this piece struck me as a school essay. There's something that I find very easy to read about Matt's writing. I think it's conversational in tone, and so while it doesn't shy away from technical detail, it feels like someone is talking to me much more than this did.
Some of that is the rigid structure:
"The first is Article I, Section 4, Clause 1.....The second section is Article II, Section 1, Clause 2".
"First, the professors object...The second argument is that ISL.....Finally, the Amars argue that ISL"
Some of that is the very straightforward calls to action:
"The Court ought to firmly reject it."
"I would respectfully urge her to vote against ISL"
I don't know exactly how I would make those things better. I'm not a great writer myself! But I thought I'd point it out as constructive criticism on how it felt different reading it than a usual Matt post. It might help to go through Matt's post and notice how he does those things. I'd expect he breaks up different points with section headings. Or uses softer language when he wants a call to action that makes the reader feel like they are being prodded to think more about it rather than being told to do it. People really don't like feeling like they are being told what to do. As an example, from the teacher's post last week, "Long story short, I think there’s a decently strong argument that we are underinvesting in hiring teachers."
I want to make it clear that you shouldn't feel bad for not quite being Matt's caliber of a writer yet. He's really good at it. You probably will get a lot better if you keep doing it and working at it over time.
So, in general, this is another great post, Milan. But I think there's one important inaccuracy here. Even if the Supreme Court adopts ISL theory, state legislatures cannot re-assign electoral votes after the election.
Like I said, I think this is important. ISL theory is misguided for all the reasons you state. And, it would have serious negative consequences. For example, the WI legislature could implement a bunch of new laws that undermine the election prior to Election Day, and neither the governor nor state courts could do anything about it (although that depends on what version of ISL theory the court adopts!).
BUT, re-assigning electoral votes after the election is not within the power of state legislatures, even if ISL theory is adopted.
One possibility that you did not touch on is that the court could hold that the power cannot be stripped from the legislature, either by ballot measure or by the state courts, but that state legislatures are still constrained in this duty by state constitutions as interpreted by the state courts. So the finding in this case would be that the state court has the authority to strike down a map as violating the state constitution, but erred by drawing its own map.
Is there any foreseeable way Roberts can vote for the NC legislature without overturning the case where the court upheld Arizona’s redistributing commission? Maybe by finding that state courts are uniquely not “legislatures”. If so, he’d probably go for it. He’s definitely down for using the courts to enact republican policies. But he doesn’t want to do it in an unseemly way, like by throwing out recent precedent just ‘cause.
I highly doubt the redistricting commission case would be directly touched in this case, although it would invite future court challenges to them, though. And Roberts wrote the lead dissent in that case, so although he's free to change his mind I highly doubt that he does.
But Roberts is also free to concur in the judgment if he doesn't like the majority opinion--he doesn't even have to issue an opinion if he wants. That would be highly rare but I think Burger did that a few times as a chief justice.
Fair enough. I’m just thinking that Roberts could vote for the NC legislature in the now-pending case. So his vote should be considered in play. He is part of the republican justices’ pathway to five votes. (From the post, I got the impression that ACB was the sole potential fifth vote. That seems false to me. If Roberts votes for the NC legislature, then they wouldn’t need her vote).
The other thing is that, to side with the NC legislature, Roberts doesn’t have to sign onto the independent state legislature theory. He can say: yeah, state legislatures are bound by state constitutions. But he can also say: no, state courts don’t get to decide whether state legislatures are acting according to state constitutions for issues of congressional redistricting. The federal constitution commits that decision to state legislatures.
I hope that Roberts can limit the scope of the ruling to more or less punt it but it feels like we've reached a critical mass of federalist judges, both on the SC and lower courts, that they can openly ignore legal arguments and just pick the outcome thats good for the GOP since it will be upheld by higher packed courts
I was not expecting a full blown article today, and now I'm about to take off for the airport, so all I'll say is that I 100% agree with Milan, and we should be very, very scared about what SCOTUS could possibly unleash with ISL.
It could be even worse than Matt says. Under ISL, what's to stop the Wisconsin legislature from passing a law that says the state's electoral votes go to the presidential candidate that wins the most congressional districts? What's to stop every other GOP-controlled legislature from doing the same? What's to stop them from doing the same thing for Senate races?
We could, very quickly, find ourselves a Russia-like one-party state, if we are not careful.
What's really scary is that if Evers loses this November, then Wisconsin can make all those changes *without* the ISL doctrine, and (unlike ISL) that authority would actually be based a *correct* interpretation of the Constitution.
Yes, there is now and never has been anything to prohibit a state from passing a law like that. Public opinion is the reason state legislatures started using popular elections to choose electors in the first place, and that's the only thing preventing them from going back to the original way of selecting electors directly without elections. And as the court held in Smiley gubernatorial approval is required in any case, whether or not someone uses the label "ISL" to describe the ruling.
A lot of the fearmongering being stoked about the so-called ISL theory is doing a disservice because it's irresponsible speculating about and normalizing of wild scenarios by journalists and commentators who don't have a good understanding of what current law allows or what the actual issues are in cases currently being litigated, so it's misinforming rather than informing the public, and which accelerates rather than slows erosion of democratic and rule of law norms. For example if the Court rules for NC legislature in Moore I expect there will be hysteria among lefty types even though the actual issue in the case is pretty niche and unlikely to move the needle much in any direction, and few will emphasize the most important point, that the whole thing can be superseded by Congress simply passing a better law.
And Ian Millhiser. As far as I can tell, neither one of them contributes anything of value to the public discourse. Just an endless stream of outrage that judges are not following to a tee the latest Democratic Party line, whatever that may be, and chicken little hysteria and agitated doomerism. No sign of any self-aware ability to see the other side of an argument or even imagine that someone might reasonably disagree.
I'm not as familiar with Millhiser, but Stern genuinely outrages me -- I've caught him a number of times outright misrepresenting holdings of cases. (A particular favorite of his is to describe some ruling as "rolling back" or "reversing" some right, but if you actually track down the opinion, it turns out that the court just didn't *extend* the law in the manner Stern thinks it should be.)
ISL is as dangerous as a bicameral majority in the tipping point state, which may well be Wisconsin or Georgia. Is there any evidence that bicameral majorities in either of these states are willing to overturn an election that has already occurred? Trump tried to get this to happen and his efforts never came up for a vote in a single chamber of any of the contested states. No state even called a special session. I cannot imagine a less popular position than “I’m overturning an election my party lost because reasons.”. Many legislators would lose their seats for taking such a vote and some might lose their lives. I wouldn’t be surprised if a significant number of legislators, given a chance to steal the presidency, embraced ISL, I just think a bicameral majority in Wisconsin would be a stretch.
I mean, when you look at the types of people who are winning GOP primaries these days and the fact that state legislators in gerrymandered seats are all but guaranteed re-election regardless of what they do, I think it becomes a bit more worrying. Not saying it's guaranteed to happen but there is a nonzero chance and that keeps me up at night.
Hard to have rigorous probability estimates based on a sample size of zero. My only pushback is the election deniers who win primaries get a lot of attention, but it’s hardly like a material number of the establishment stalwarts have been unseated.
My surmise is the ISL theory might come into play if things were as close as Florida was in 2000, where reasonable people could disagree on who won without drinking much koolaid.
I don't see how the state's SC's actions in these situations is acceptable either. They threw out the legislature's maps, which I can accept. But appointing a special master and having them create a map instead seems like a usurpation of the normal legislative power.
"How to interpret state constitutions" is a power state courts should have
"Writing state law" is not a power state courts should have
If the state law says that maps should be drawn by body X, if body X draws an unconstitutional map, that map should be thrown out and body X instructed to try again. The court doesn't and shouldn't have the power to conjure up body Y out of thin air.
I don't disagree - though I will point out that the question before the court is about the US constitution.
I think a broader question is what you think of judicial supremacy:
- first do you think they should be the final arbitrators of what is constitutional and what is not?
- second, if you think they can strike down an unconstitutional map, what makes it constitutional for the courts to take the next step and appoint a special master to create a new map when the law says that should be done by the legislature?
Finally, are we applying a reasonably consistent approach to power so that whatever power we are granting this SC, we would also feel applies to other state SC's who are likely to rule in ways we don't like?
My answer is that I think the court is likely the best place to decide constitutionality (in the short run!), and therefore think its reasonable for the court to strike down a map that violates the constitution (whether state or federal). However, I don't grant that power is sufficient to allow the court to then create a new map without it ever going through the legislative process.
1. The constitution only discusses federal elections. You make it sound like ISL applies to state and local, which is a stretch at best.
2. If passed as proposed , ECRA fixes the “failed election” risk that state legislatures appoint their own electors, which is the largest component of this fear/risk.
ISL could easily be a historic ruling... top 10 for sure, but right now we should be focusing on the ECRA as that is a must pass, and I am astounded that Schumer can not find a place in the agenda to get it debated and voted on. Besides the “keep the Government open”stuff like the appropriations bills, there is nothing more important for the 117th to get accomplished by 3Jan2023.
>>If passed as proposed , ECRA fixes the “failed election” risk that state legislatures appoint their own electors, which is the largest component of this fear/risk<<
The ECRA does some good things, but, In the wake of a ruling favorable to the ISL, wouldn't that particular provision of the ECRA be rendered unconstitutional (or at minimum gravely weakened)—at least with respect to presidential electors?
Possibly, if the ruling is broad enough, but the ECRA as written strikes the failed election provision, which essential neuters the state legislatures ability to use the law to declare a failed election. Without that provision to hang their hat on, they can’t do that, and whether the legislature has the sole right or not is not applicable
ISL will be endorsed in a 5-4 decision, with Roberts dissenting independently of the liberals. It will cause a tide of gerrymandering in Republican-controlled states and I’d give a 40% probability to one of them deciding that its electoral votes will be assigned by district, gerrymandering the presidential election.
Spoiler alert: states are already free to allocate electors by congressional district - Maine and Nebraska have done that for decades - no ISL decision required.
ISL would remove the possibility of gubernatorial intervention, throwing the decision to people who both don’t hold a state-wide office and don’t have the mindset to win one.
Right, but the congressional districting process is ostensibly subject to checks and balances at the state level (courts, statutes, executive branch authority, referenda, state constitutions). Those could all be rendered impotent, which means our already damaging gerrymandering tendencies could soon be in full banana republic mode. And that in turn could obviously gift the Republican nominee with additional electoral votes.
SCOTUS, as constituted now, will always do what's better for the GOP and white supremacy. Count on it. Then use the preemption principle to negate what they do. BUT, you gotta win the Congress in 2022.
The vibe I aways got from Roberts is that he's very much a dedicated movement conservative, but A) he's a political animal, and so tended to choose his battles carefully, and, B) was concerned about the institutional credibility of the court.
"A" is pretty much out the window now for his five right wing colleagues, because they're well aware the country is on the verge of reaching a point where politics don't matter much, because elections don't matter much. And "B" is, well, irrelevant in their eyes because of "A." Don't think the Supreme Court is credible, libs? Hard cheese.
The Amar-Amar (Amars?) argument seems pretty obviously correct to me. The Constitution was using "legislature" as a synecdoche for the "state's democratic lawmaking process as prescribed by its constitution." We still do this to this day! We always say things like "Congress enacted the Affordable Care Act" when obviously Obama still needed to sign it and the Supreme Court could have struck it down if it wanted to (and almost did). For Alito et al. to buy into ISL would be the same mode of reasoning as interpreting Article VI Section 4's "The United States shall guarantee to every State in this Union a Republican Form of Government" as, well, you know.
I'm just saying they're wrong is all. Either because of motivated reasoning or intentional dishonesty, they're exploiting a misunderstanding to achieve an unintended result.
I am myself guilty of referring to the ISL "doctrine" in a loose and sloppy way but it's a pretty indeterminate term, and not helpful to the extent it becomes a substitute for carefully understanding the issues in each case. I think this article falls prey to that, as it both overstates and mistates what is at issue in Moore v. Harper.
What the NC legislature is arguing is that the substantive rules regarding time, place and manner of elections for federal Representatives and Senators are solely a matter of federal law, that may only be established by Congress and, to the extent Congress allows, the legislatures of each State, each acting within the procedural constraints of their respective constitutions (as opposed to state courts, in that case). The NC petitioners are NOT arguing that state legislatures are exempt from normal procedural rules established by their constitutions, such as majority bicameral vote or a gubernatorial approval, as they say in their brief:
"Petitioners thus do not dispute that each State’s constitution may properly govern such procedural questions as whether a bicameral vote is required to enact a law, whether the legislation is subject to gubernatorial veto, see Smiley, 285 U.S. at 367–68, and, perhaps in the extreme case, whether some lawmaking entity other than the ordinary institutional legislature has authority to legislate on the subject under “the State’s prescriptions for lawmaking,” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 808 (2015). But it does not follow that state constitutions may also impose substantive limits, enforceable by state courts outside of “the method which the state has prescribed for legislative enactment[ ],” Smiley, 285 U.S. at 367, on the legislature’s exercise of the power assigned to it by the Elections Clause."
That's it. If a state passes redistricting laws or something for how federal congressional elections are conducted that are substantively objectionable, they are saying the remedy is for Congress to preempt those laws, not for state judges to take it upon themselves to impose different substantive standards. That may or may be a good idea, but it also does not seem like something to get bent out of shape about if the Supreme Court does rule in favor of the NC legislative. We are already in need of Congress passing better federal districting laws, including on gerrymandering, and a decision by the Court in favor of NC could light a fire under Congress to get moving on that.
There is no need to “light a fire under Congress” to do that—Democrats have already passed such a bill in the house and would jump at the chance to make it into law it if they could find a way to get it past the filibuster. Republicans are strongly opposed because they have the advantage in a majority of state legislatures and don’e want to give it up.
We're coming up on our Quarter -Millenial anniversary, and Congress has yet to pass a federal anti-gerrymandering law. I'd say that means it needs a fire lit under it.
That's impossible, only the states can draw districts. As you note, the anti-gerrymandering law can only pass if Democrats hold the house and gain enough seats in the Senate to end the filibuster. It's not a matter of anyone "lighting a fire" under Congress, it's a matter of getting a Democratic majority.
So the procedural requirements of the state constitution constrain the state legislature, but the substantive requirements of the state constitution do not. And redistricting is substantive rather than procedural? That is a weird argument. I'm not seeing the textual basis for that.
The argument is that if it's a regulation of the "Times, Places and Manner of holding Elections for Senators and Representatives" -- language straight from the text of the Constitution -- such that it would be within the power of Congress to regulate under the Elections Clause, then it's a matter of federal law, and only state legislatures -- not other state bodies such as state supreme courts -- may establish such regulations. But in so doing, state legislatures must of course abide by the normal procedural rules in that state for how the legislature normally enacts laws, including, for example, being subject to the signature or veto if the governor.
There's a lot of good content in here and you did well to talk about the legal theory as well as its implications.
I wanted to comment on how much the style of this piece struck me as a school essay. There's something that I find very easy to read about Matt's writing. I think it's conversational in tone, and so while it doesn't shy away from technical detail, it feels like someone is talking to me much more than this did.
Some of that is the rigid structure:
"The first is Article I, Section 4, Clause 1.....The second section is Article II, Section 1, Clause 2".
"First, the professors object...The second argument is that ISL.....Finally, the Amars argue that ISL"
Some of that is the very straightforward calls to action:
"The Court ought to firmly reject it."
"I would respectfully urge her to vote against ISL"
I don't know exactly how I would make those things better. I'm not a great writer myself! But I thought I'd point it out as constructive criticism on how it felt different reading it than a usual Matt post. It might help to go through Matt's post and notice how he does those things. I'd expect he breaks up different points with section headings. Or uses softer language when he wants a call to action that makes the reader feel like they are being prodded to think more about it rather than being told to do it. People really don't like feeling like they are being told what to do. As an example, from the teacher's post last week, "Long story short, I think there’s a decently strong argument that we are underinvesting in hiring teachers."
I want to make it clear that you shouldn't feel bad for not quite being Matt's caliber of a writer yet. He's really good at it. You probably will get a lot better if you keep doing it and working at it over time.
So, in general, this is another great post, Milan. But I think there's one important inaccuracy here. Even if the Supreme Court adopts ISL theory, state legislatures cannot re-assign electoral votes after the election.
Here's one election law professor talking about this: https://electionlawblog.org/?p=129026. And here's another: https://electionlawblog.org/?p=131215.
Like I said, I think this is important. ISL theory is misguided for all the reasons you state. And, it would have serious negative consequences. For example, the WI legislature could implement a bunch of new laws that undermine the election prior to Election Day, and neither the governor nor state courts could do anything about it (although that depends on what version of ISL theory the court adopts!).
BUT, re-assigning electoral votes after the election is not within the power of state legislatures, even if ISL theory is adopted.
In fairness to you, Milan, a number of commentators, including a distinguished federal court judge (https://www.cnn.com/2022/04/27/opinions/gop-blueprint-to-steal-the-2024-election-luttig/index.html) has made this same mistake. Impressed by your work overall; keep it up!
One possibility that you did not touch on is that the court could hold that the power cannot be stripped from the legislature, either by ballot measure or by the state courts, but that state legislatures are still constrained in this duty by state constitutions as interpreted by the state courts. So the finding in this case would be that the state court has the authority to strike down a map as violating the state constitution, but erred by drawing its own map.
Milan, I recommend Akhil Reed Amar's Con Law class if he's still teaching it.
Milan, I recommend Akhil Reed Amar's Con Law class if he's still teaching it.
It's on the list for sure
Is there any foreseeable way Roberts can vote for the NC legislature without overturning the case where the court upheld Arizona’s redistributing commission? Maybe by finding that state courts are uniquely not “legislatures”. If so, he’d probably go for it. He’s definitely down for using the courts to enact republican policies. But he doesn’t want to do it in an unseemly way, like by throwing out recent precedent just ‘cause.
I highly doubt the redistricting commission case would be directly touched in this case, although it would invite future court challenges to them, though. And Roberts wrote the lead dissent in that case, so although he's free to change his mind I highly doubt that he does.
But Roberts is also free to concur in the judgment if he doesn't like the majority opinion--he doesn't even have to issue an opinion if he wants. That would be highly rare but I think Burger did that a few times as a chief justice.
Fair enough. I’m just thinking that Roberts could vote for the NC legislature in the now-pending case. So his vote should be considered in play. He is part of the republican justices’ pathway to five votes. (From the post, I got the impression that ACB was the sole potential fifth vote. That seems false to me. If Roberts votes for the NC legislature, then they wouldn’t need her vote).
The other thing is that, to side with the NC legislature, Roberts doesn’t have to sign onto the independent state legislature theory. He can say: yeah, state legislatures are bound by state constitutions. But he can also say: no, state courts don’t get to decide whether state legislatures are acting according to state constitutions for issues of congressional redistricting. The federal constitution commits that decision to state legislatures.
I hope that Roberts can limit the scope of the ruling to more or less punt it but it feels like we've reached a critical mass of federalist judges, both on the SC and lower courts, that they can openly ignore legal arguments and just pick the outcome thats good for the GOP since it will be upheld by higher packed courts
I was not expecting a full blown article today, and now I'm about to take off for the airport, so all I'll say is that I 100% agree with Milan, and we should be very, very scared about what SCOTUS could possibly unleash with ISL.
It could be even worse than Matt says. Under ISL, what's to stop the Wisconsin legislature from passing a law that says the state's electoral votes go to the presidential candidate that wins the most congressional districts? What's to stop every other GOP-controlled legislature from doing the same? What's to stop them from doing the same thing for Senate races?
We could, very quickly, find ourselves a Russia-like one-party state, if we are not careful.
What's really scary is that if Evers loses this November, then Wisconsin can make all those changes *without* the ISL doctrine, and (unlike ISL) that authority would actually be based a *correct* interpretation of the Constitution.
Yes, there is now and never has been anything to prohibit a state from passing a law like that. Public opinion is the reason state legislatures started using popular elections to choose electors in the first place, and that's the only thing preventing them from going back to the original way of selecting electors directly without elections. And as the court held in Smiley gubernatorial approval is required in any case, whether or not someone uses the label "ISL" to describe the ruling.
A lot of the fearmongering being stoked about the so-called ISL theory is doing a disservice because it's irresponsible speculating about and normalizing of wild scenarios by journalists and commentators who don't have a good understanding of what current law allows or what the actual issues are in cases currently being litigated, so it's misinforming rather than informing the public, and which accelerates rather than slows erosion of democratic and rule of law norms. For example if the Court rules for NC legislature in Moore I expect there will be hysteria among lefty types even though the actual issue in the case is pretty niche and unlikely to move the needle much in any direction, and few will emphasize the most important point, that the whole thing can be superseded by Congress simply passing a better law.
I see you're familiar with the "legal" writings of Mark Joseph Stern!
And Ian Millhiser. As far as I can tell, neither one of them contributes anything of value to the public discourse. Just an endless stream of outrage that judges are not following to a tee the latest Democratic Party line, whatever that may be, and chicken little hysteria and agitated doomerism. No sign of any self-aware ability to see the other side of an argument or even imagine that someone might reasonably disagree.
I'm not as familiar with Millhiser, but Stern genuinely outrages me -- I've caught him a number of times outright misrepresenting holdings of cases. (A particular favorite of his is to describe some ruling as "rolling back" or "reversing" some right, but if you actually track down the opinion, it turns out that the court just didn't *extend* the law in the manner Stern thinks it should be.)
Not Matt, but yes ISL is bad.
ISL is as dangerous as a bicameral majority in the tipping point state, which may well be Wisconsin or Georgia. Is there any evidence that bicameral majorities in either of these states are willing to overturn an election that has already occurred? Trump tried to get this to happen and his efforts never came up for a vote in a single chamber of any of the contested states. No state even called a special session. I cannot imagine a less popular position than “I’m overturning an election my party lost because reasons.”. Many legislators would lose their seats for taking such a vote and some might lose their lives. I wouldn’t be surprised if a significant number of legislators, given a chance to steal the presidency, embraced ISL, I just think a bicameral majority in Wisconsin would be a stretch.
I mean, when you look at the types of people who are winning GOP primaries these days and the fact that state legislators in gerrymandered seats are all but guaranteed re-election regardless of what they do, I think it becomes a bit more worrying. Not saying it's guaranteed to happen but there is a nonzero chance and that keeps me up at night.
Hard to have rigorous probability estimates based on a sample size of zero. My only pushback is the election deniers who win primaries get a lot of attention, but it’s hardly like a material number of the establishment stalwarts have been unseated.
My surmise is the ISL theory might come into play if things were as close as Florida was in 2000, where reasonable people could disagree on who won without drinking much koolaid.
I don't see how the state's SC's actions in these situations is acceptable either. They threw out the legislature's maps, which I can accept. But appointing a special master and having them create a map instead seems like a usurpation of the normal legislative power.
Final say on how the interpret state constitutions (including anti-gerrymandering provisions) should rest with state courts, not federal ones.
"How to interpret state constitutions" is a power state courts should have
"Writing state law" is not a power state courts should have
If the state law says that maps should be drawn by body X, if body X draws an unconstitutional map, that map should be thrown out and body X instructed to try again. The court doesn't and shouldn't have the power to conjure up body Y out of thin air.
I don't disagree - though I will point out that the question before the court is about the US constitution.
I think a broader question is what you think of judicial supremacy:
- first do you think they should be the final arbitrators of what is constitutional and what is not?
- second, if you think they can strike down an unconstitutional map, what makes it constitutional for the courts to take the next step and appoint a special master to create a new map when the law says that should be done by the legislature?
Finally, are we applying a reasonably consistent approach to power so that whatever power we are granting this SC, we would also feel applies to other state SC's who are likely to rule in ways we don't like?
My answer is that I think the court is likely the best place to decide constitutionality (in the short run!), and therefore think its reasonable for the court to strike down a map that violates the constitution (whether state or federal). However, I don't grant that power is sufficient to allow the court to then create a new map without it ever going through the legislative process.
A couple of comments.
1. The constitution only discusses federal elections. You make it sound like ISL applies to state and local, which is a stretch at best.
2. If passed as proposed , ECRA fixes the “failed election” risk that state legislatures appoint their own electors, which is the largest component of this fear/risk.
ISL could easily be a historic ruling... top 10 for sure, but right now we should be focusing on the ECRA as that is a must pass, and I am astounded that Schumer can not find a place in the agenda to get it debated and voted on. Besides the “keep the Government open”stuff like the appropriations bills, there is nothing more important for the 117th to get accomplished by 3Jan2023.
>>If passed as proposed , ECRA fixes the “failed election” risk that state legislatures appoint their own electors, which is the largest component of this fear/risk<<
The ECRA does some good things, but, In the wake of a ruling favorable to the ISL, wouldn't that particular provision of the ECRA be rendered unconstitutional (or at minimum gravely weakened)—at least with respect to presidential electors?
Possibly, if the ruling is broad enough, but the ECRA as written strikes the failed election provision, which essential neuters the state legislatures ability to use the law to declare a failed election. Without that provision to hang their hat on, they can’t do that, and whether the legislature has the sole right or not is not applicable
Yes.
ISL will be endorsed in a 5-4 decision, with Roberts dissenting independently of the liberals. It will cause a tide of gerrymandering in Republican-controlled states and I’d give a 40% probability to one of them deciding that its electoral votes will be assigned by district, gerrymandering the presidential election.
Spoiler alert: states are already free to allocate electors by congressional district - Maine and Nebraska have done that for decades - no ISL decision required.
ISL would remove the possibility of gubernatorial intervention, throwing the decision to people who both don’t hold a state-wide office and don’t have the mindset to win one.
Right, but the congressional districting process is ostensibly subject to checks and balances at the state level (courts, statutes, executive branch authority, referenda, state constitutions). Those could all be rendered impotent, which means our already damaging gerrymandering tendencies could soon be in full banana republic mode. And that in turn could obviously gift the Republican nominee with additional electoral votes.
Sounds probable.
SCOTUS, as constituted now, will always do what's better for the GOP and white supremacy. Count on it. Then use the preemption principle to negate what they do. BUT, you gotta win the Congress in 2022.
The vibe I aways got from Roberts is that he's very much a dedicated movement conservative, but A) he's a political animal, and so tended to choose his battles carefully, and, B) was concerned about the institutional credibility of the court.
"A" is pretty much out the window now for his five right wing colleagues, because they're well aware the country is on the verge of reaching a point where politics don't matter much, because elections don't matter much. And "B" is, well, irrelevant in their eyes because of "A." Don't think the Supreme Court is credible, libs? Hard cheese.
The Amar-Amar (Amars?) argument seems pretty obviously correct to me. The Constitution was using "legislature" as a synecdoche for the "state's democratic lawmaking process as prescribed by its constitution." We still do this to this day! We always say things like "Congress enacted the Affordable Care Act" when obviously Obama still needed to sign it and the Supreme Court could have struck it down if it wanted to (and almost did). For Alito et al. to buy into ISL would be the same mode of reasoning as interpreting Article VI Section 4's "The United States shall guarantee to every State in this Union a Republican Form of Government" as, well, you know.
Amar², please.
What's obvious to reasonable people like you if far from guaranteed to be recognized by our supremely politicized high court.
I'm just saying they're wrong is all. Either because of motivated reasoning or intentional dishonesty, they're exploiting a misunderstanding to achieve an unintended result.
Exactly.
I am myself guilty of referring to the ISL "doctrine" in a loose and sloppy way but it's a pretty indeterminate term, and not helpful to the extent it becomes a substitute for carefully understanding the issues in each case. I think this article falls prey to that, as it both overstates and mistates what is at issue in Moore v. Harper.
What the NC legislature is arguing is that the substantive rules regarding time, place and manner of elections for federal Representatives and Senators are solely a matter of federal law, that may only be established by Congress and, to the extent Congress allows, the legislatures of each State, each acting within the procedural constraints of their respective constitutions (as opposed to state courts, in that case). The NC petitioners are NOT arguing that state legislatures are exempt from normal procedural rules established by their constitutions, such as majority bicameral vote or a gubernatorial approval, as they say in their brief:
"Petitioners thus do not dispute that each State’s constitution may properly govern such procedural questions as whether a bicameral vote is required to enact a law, whether the legislation is subject to gubernatorial veto, see Smiley, 285 U.S. at 367–68, and, perhaps in the extreme case, whether some lawmaking entity other than the ordinary institutional legislature has authority to legislate on the subject under “the State’s prescriptions for lawmaking,” Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787, 808 (2015). But it does not follow that state constitutions may also impose substantive limits, enforceable by state courts outside of “the method which the state has prescribed for legislative enactment[ ],” Smiley, 285 U.S. at 367, on the legislature’s exercise of the power assigned to it by the Elections Clause."
That's it. If a state passes redistricting laws or something for how federal congressional elections are conducted that are substantively objectionable, they are saying the remedy is for Congress to preempt those laws, not for state judges to take it upon themselves to impose different substantive standards. That may or may be a good idea, but it also does not seem like something to get bent out of shape about if the Supreme Court does rule in favor of the NC legislative. We are already in need of Congress passing better federal districting laws, including on gerrymandering, and a decision by the Court in favor of NC could light a fire under Congress to get moving on that.
There is no need to “light a fire under Congress” to do that—Democrats have already passed such a bill in the house and would jump at the chance to make it into law it if they could find a way to get it past the filibuster. Republicans are strongly opposed because they have the advantage in a majority of state legislatures and don’e want to give it up.
We're coming up on our Quarter -Millenial anniversary, and Congress has yet to pass a federal anti-gerrymandering law. I'd say that means it needs a fire lit under it.
That's impossible, only the states can draw districts. As you note, the anti-gerrymandering law can only pass if Democrats hold the house and gain enough seats in the Senate to end the filibuster. It's not a matter of anyone "lighting a fire" under Congress, it's a matter of getting a Democratic majority.
So the procedural requirements of the state constitution constrain the state legislature, but the substantive requirements of the state constitution do not. And redistricting is substantive rather than procedural? That is a weird argument. I'm not seeing the textual basis for that.
The argument is that if it's a regulation of the "Times, Places and Manner of holding Elections for Senators and Representatives" -- language straight from the text of the Constitution -- such that it would be within the power of Congress to regulate under the Elections Clause, then it's a matter of federal law, and only state legislatures -- not other state bodies such as state supreme courts -- may establish such regulations. But in so doing, state legislatures must of course abide by the normal procedural rules in that state for how the legislature normally enacts laws, including, for example, being subject to the signature or veto if the governor.