Over the many months that Moore v. Harper, the independent state legislature case, unrolled, those guided by the paper trail the justices have left on the issue did not have much confidence that the radical theory would be rejected.
‘Times, Places and Manner of holding Elections for Senators and Representatives’ must be ‘prescribed in each State by the Legislature thereof,’”
Well, to me, it indicates that they can make the rules, but it doesn’t say they have the final authority to alter the outcome of the election. But I am nor a constitutional scholar.
The dissent is interesting in showing crazy myopia for constitutional language, taking a literal position on the Elections Clause that a state legislature has unlimited authority even greater than the state constitution that created it, and completely ignoring the Guarantee Clause where giving a state legislature any unlimited power would be contrary to that provision.
Then compare that reasoning to the mental gymnastics those same justices use to ignore the “equal” part of the 14th Amendments Equal Protection clause. Hard to recognize their authority at all when they are so obviously biased toward their ideologically-driven result.
“As Chief Justice Rehnquist persuasively explained in Bush v. Gore…”
That’s the point – right there – where you can ignore everything that follows.
On the other hand, if one takes the “plain meaning of the words” one could limit their authority to the dates and hours for the election (Times), where polling places either are, or can be (Places) and whether paper ballots, counting balls, show of hands, etc. (Manner) are allowed.
“An Arizona ballot initiative transferred that authority from ‘the Legislature’ to an ‘Independent Redistricting Commission,’” he wrote in 2015. “The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising ‘the Legislature’ to mean ‘the people.’ The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court.”
“How dare those upstart Voters try to take back power from the Politicians?!! We STOLE it, fair and square!”
Bingo! I see no mention of legislatures having the ability to administer elections without judicial review. Once again, Clarence Thomas is making it up as he goes along. So glad he was in the minority on this one.
They probably should have noted that Roberts was writing for the minority in that case. SCOTUS ended up approving Arizona’s independent redistricting commission.
““Its language specifies a particular organ of a state government, and we must take that language seriously…”
…by ignoring the body of which that organ is a part, ripping it out of that body whole and pretending it can and does have independent existence apart from that body by virtue of the Federal Constitution merely mentioning it…all while we rip the Federal Constitution out of its historical context and the fact that the people drafting it well understood that State Legislatures were creatures of their State Constitutions and the 3 branch check-and-balances systems those State Constitutions created to mimic the Federal system."
When the history is bad for them, they’re “textualists.” When the history (they think) is good for them, they’re “originalists.”
"The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.”
I’m guessing that the text of the Constitution also requires that federal courts do not rewrite state constitutions.
It seems to me that taking this literal interpretation would encourage the elimination of judicial review itself, since it’s not enumerated directly in the Constitution. It exists as the practical manifestation of permitting the courts to adjudicate issues between the other branches and establishing the judicial branch’s own authority.
Which points out the absurdity of hewing so literally to the text without any attempt to address its intent.
I saved my nickels and bought the X-Ray Text(ualist) Spex for sale in the back of my Classics Illustrated version of the U.S. Constitution, published by The Federalist Society. Wearing those, the passage above is clarified, to wit: “Judges in states with GOP-majority legislatures have no power to review election legislation. Judges in state with D-majority legislatures have full power to review, overturn, tear up, or otherwise correct election legislation.”
Those peepers are worth every penny!
November 2016 was a big ignore.
Showing again how Bush v. Gore, where the Supreme Court overruled the right of the people of Florida to vote and have their votes counted, began a process of rear-guard attacks on constitutional liberties through the courts.
Going into this, it seemed that the country was on the brink of having five or six supremos come down on the side of giving state legislators total control over federal elections, including endorsing the claim that these legislators had the power to throw out any results that they didn’t like and to name whoever they wanted as presidential electors. But something made three of those learned metaphysicians pull back, and so we have this muddled outcome.
Could this be a case of “the switch in time that saved the nine”, as happened in 1937 after FDR bluffed packing the anti-New Deal Court? Are Roberts, Kavanaugh, and Barrett, at least, reading tea leaves telling that the Court is in public disrepute and has gone much too far in embracing radical measures–at least in some areas? (No, not yet when it comes to abortion and perhaps other matters, as the pending decisions may reveal.)
The Constitution is “the supreme law of the land,” superseding any state constitutution. If need be, the Supreme Court is well within its rights to cut anything out of a state constititution that offends.
I am beginning to think something like that is going on, though it’s much too soon to put it in perspective. It could be merely that the court has in the back of its mind, the angry demonstrations and actions of the mob on January 6, even though that was coming from a possibly more ideologically “friendly” crowd.
We will see on affirmative action admissions, but the sudden variation in the makeup of the majorities might indeed indicate a sincere wish on the part of some of the justices not to be perceived as solely driven by politics or political loyalty.
Shelden Whitehouse
Perhaps it should’ve been prefaced with, A well-regulated legislature …