Supreme Court conservatives about to kill fair elections permanently

Our nation is at a legal and ethical crossroads, where we must choose between actual ‘rule of law,’ or the rule of ‘judicial capture.'

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Part II in a Series

Conservative Justices on the U.S. Supreme Court are readying their rhetorical knives to kill fair elections in the United States, permanently. Their weapon of choice is a long-discredited legal fiction known as the Independent State Legislatures doctrine. This doctrine makes the claim that state legislatures have the sole right to create or alter all state level election laws. The doctrine denies state level courts any ‘standing’ to adjudicate these election laws.

It was reintroduced by republicans via two cases accepted on the ‘shadow docket.’ The cases to watch are Moore v. Harper nc-isl.pdf (electionlawblog.org) and Toth v. Chapman 21A457 – DocumentCloud .  Though seemingly routine on the surface, they have dire implications for open and fair elections. Both cases deal with redistricting. On a deeper level, they could legitimize gerrymandering as a permanent fixture, with no right of judicial review, based on the old ‘states rights’ trope.

These cases are the litigious trial balloon engineered to institute an illegitimate power grab by GOP controlled state legislatures, solidifying voter suppression schemes, bringing Jim Crow 2.0 raging back in full racist glory.

Moore v. Harper….and Toth v. Chapman…

In the Moore case, the North Carolina Supreme Court struck down gerrymandered maps of congressional districts which were drawn up by state republicans. The GOP didn’t agree with the state supreme court and, in both cases, appealed—not to the federal district court—but to the U.S. Supreme Court’s ‘shadow docket’ which allows such sidestepping of established appellate procedure.

In the Toth case, the Pennsylvania Supreme Court chose a congressional map, after the republican dominated legislature and the democratic governor were irretrievably deadlocked. Republicans in both states made the specious claim that state courts had no standing to intervene in redistricting cases, based on the ‘Independent State Legislatures Doctrine.’

What is the Independent State Legislatures Doctrine….and why is it dangerous?

Ian Millhiser wrote in Vox that “the independent state legislatures doctrine derives from a deceptively simple reading of the Constitution.” Supeme Court: The fate of US elections is in Amy Coney Barrett’s hands – Vox Millhiser explained further that the advocates of this doctrine based its justification on one solitary phrase in the Constitution which states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” Article I | U.S. Constitution | US Law | LII / Legal Information Institute (cornell.edu) Millhiser added that “a separate provision says that presidential elections shall also be conducted in a manner determined by the state “Legislature.” Article II – Executive Branch | The National Constitution Center

Based on this rigid and simplistic constitutional interpretation, election laws would be solely determined by the state legislatures, with state courts stripped of any authority to adjudicate, much less reverse abusive laws established by many of the same historically racist legislatures. Again, in theory, this doctrine would legitimize Jim Crow 2.0, with no subsequent standing to sue. This is the old ‘states’ rights trope writ large by the GOP. It grants the power of aristocratic privilege to the legislature, essentially declaring a license to discriminate with impunity. Voter suppression and intimidation would be technically ‘legal’ once again, with no right of judicial appeal.

The question remains, is this doctrine a legitimate interpretation of election law? Is this a scheme to strip universal voting rights using the structure of ‘originalist’ constitutional theory?

What is the history behind this radical interpretation that has been lurking in the shadows of the conservative imagination? Once again, Ian Millhiser, writing for Vox, provides a succinct explanation over the propaganda of conservative Ivy League drones. Millhiser himself has legal credentials, including a J.D., magna cum laude from Duke University. He has authored two books on the Supreme Court—namely” Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted” and “The Agenda: How a Republican Supreme Court is Reshaping America.”

There are three major problems Millhiser identified regarding this doctrine.  The first problem comes directly from one hundred years of previous SCOTUS precedent on record, which rejected the doctrine. The second problem is, ironically of originalist nature, stating that the voting public at the time of the nation’s founding also rejected the doctrine. Finally, Millhiser explained that this doctrine in actual application is ‘unworkable.’ Supeme Court: The fate of US elections is in Amy Coney Barrett’s hands – Vox  Millhiser also pointed out that this doctrine constitutes a direct “attack on democracy.” Supeme Court: The fate of US elections is in Amy Coney Barrett’s hands – Vox 

Problem #1 One hundred years of Supreme Court precedent rejecting the doctrine…

The judicial system in America works on the idea of precedent in order to allegedly remain faithful to the law. There is on record, one hundred years of unchallenged precedent that has clearly rejected the independent state legislatures doctrine. The main precedent setting cases are Davis v. Hildebrant, Smiley v. Holm, Arizona State Legislature v. Arizona Independent Redistricting Commission, and Rucho v. Common Cause.

Davis v. Hildebrant (1916) …

The first case, Davis v. Hildebrant (1916) dealt with one simple question, do the people retain the right to alter or change state election laws via the use of the referendum? The Davis case examined a provision in the Ohio state constitution that granted voters a right to veto state laws using the referendum process. Davis presented with congressional maps created by the Ohio legislature which were rejected by the people in a referendum election. The supreme court agreed in a unanimous opinion that Ohio’s referendum right was valid.

The Davis case took the term “legislature” to reference any group of people who were granted the power to make laws within a state—as a “legislative power.” Since the Ohio constitution granted such power via the referendum provision, “the referendum was treated as part of the legislative power” and “should be held and treated to be the state legislative power for the purpose of creating congressional districts by law.” Subsequently, voters casting ballots in a referendum election are part of that state “legislature “as viewed by cited relevant provisions in the U.S. Constitution. Ohio ex rel. Davis v. Hildebrant, 241 US 565 – Supreme Court 1916 – Google Scholar

Smiley v. Holm (1932) …

The case of Smiley v. Holm (1932) asked whether a governor had the legitimate power to veto a bill which impacted federal elections. The independent state legislature doctrine would issue a resounding “no,” to this question, as a governor is not from the state’s legislative branch. Again, the supreme court rejected this rigid reading of the Constitution, claiming that state election laws must be enacted using the same processes as any other state law. Smiley v. Holm, 285 US 355 – Supreme Court 1932 – Google Scholar

Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) …

The supreme court reviewed the case of: Arizona State Legislature v. Arizona Independent Redistricting Commission (2015).  Again, plaintiffs arguing the doctrine asked whether individual states could license a bipartisan commission to create congressional maps. Plaintiffs pushing the independent state legislature doctrine claimed that such a right never existed since a commission is not part of the actual state “legislature.” The supreme court rejected the argument. (https://www.supremecourt.gov/opinions/14pdf/13-1314_3ea4.pdf)

The court summarized past decisions on this issue and wrote that “our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”

This case sustained the idea that voters in a state could further enact a state law “transferring the power to draw legislative maps to a commission” using the ballot initiative process. Supeme Court: The fate of US elections is in Amy Coney Barrett’s hands – Vox

Millhiser also highlighted the hypocrisy of the four current conservatives on the supreme court as they seemed to reject the doctrine in the Arizona case yet endorsed the very same doctrine when it seemed to improve Trump’s reelection bid in 2020. Supeme Court: The fate of US elections is in Amy Coney Barrett’s hands – Vox

Rucho v. Common Cause (2019) …

The Rucho case addressed whether federal courts have standing to hear lawsuits challenging partisan gerrymanders. The majority opinion decided that federal courts do not have that authority. Conservative justices Alito, Gorsuch, Thomas, and Kavanaugh joined the majority opinion. The Rucho decision also recognized that states may limit their legislature’s power to create congressional maps, stating that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” within the context of partisan gerrymandering cases. According to Millhiser, Rucho came close to endorsing “constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts.” (Rucho v. Common Cause, 139 S. Ct. 2484 – Supreme Court 2019 – Google Scholar)  Supeme Court: The fate of US elections is in Amy Coney Barrett’s hands – Vox

Problem #2 The doctrine was rejected by the founding voters…

There is strong evidence from the nation’s founders showing they rejected the idea that state legislatures be granted unchecked power over laws governing federal elections. Supeme Court: The fate of US elections is in Amy Coney Barrett’s hands – Vox

Legal scholars Vikram Amar from University of Illinois College of Law and Akhil Amar from Yale Law School published a paper titled: Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish. Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish by Vikram D. Amar, Akhil Amar :: SSRN 

They explained how four of the thirteen original states adopted specific state constitutional provisions which restricted legislative power to determine the rules governing federal elections. If the independent state legislature doctrine were a legitimate mandate deriving from the Constitution, those restrictions placed on state legislatures would have been declared unconstitutional. These limits on state legislatures were put in place during the first term–of President George Washington.

It doesn’t get any more ‘originalist’ than that.

The authors also noted in their paper that, “at least two early states that provided for vetoes for general legislative action employed such vetoes in the process by which federal election rules were made.” Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish by Vikram D. Amar, Akhil Amar :: SSRN Additionally, in Massachusetts, “bills regulating federal elections were not considered by the legislative houses alone but were presented to—and subject to disapproval by—the governor.” Furthermore, in New York, “such bills were subjected to a council of review that included not only the governor, but also members of the state judiciary.” Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish by Vikram D. Amar, Akhil Amar :: SSRN

It appears that contrary to sponsors of this doctrine, (which represents a radical power shift from the electorate to the state legislatures); the actual founding voters understood that those state level legislatures were never granted carte blanche power over election law. The voters of George Washington’s time understood that an overly ambitious state legislature can be placed in check by the state constitution, the state judiciary or a governor’s veto. There was no such thing as the ‘independent state legislatures doctrine’ at the founding and creation of the U.S. Constitution.

Problem #3 The independent state legislature doctrine is utterly unworkable…

The pseudo logic of this doctrine is a formula for legislative chaos. If the doctrine is accepted at face value, then there would be no mechanism to ‘check’ the decisions made by each state legislature, as the state courts are excluded from the question of how a state runs federal elections. Basically, this doctrine has no provision for any judicial ‘referee’ function. Legislatures pass laws, but state courts are forbidden from ruling how to apply those laws, under this dangerous theory.

The independent state legislature doctrine takes state courts out of the equation, in direct violation of precedent dating back to 1803 in the case of Marbury v. Madison. In fact, the Marbury case established the authority of the Supreme Court, when it clearly stated that, “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.” Marbury v. Madison :: 5 U.S. 137 (1803) :: Justia US Supreme Court Center

With the Marbury decision in mind, (which should meet even the most stringent standards of any originalist), let’s return to the Moore case, currently before the shadow docket of the US Supreme Court. Keep in mind that the ‘shadow docket’ allows the court to decide a case without oral arguments, review of necessary documents, or identifying signatures of each justice.

The Moore case deals with redistricting in North Carolina, a state with a long history of voter suppression and other Jim Crow violations. North Carolina does however have a state constitutional provision which forbids the legislature from creating any redistricting maps. That particular provision was proposed by the state legislature and became part of the state constitution.  This is the very provision that the North Carolina Supreme Court relied on to revoke gerrymandered maps created by republicans. (https://s3.documentcloud.org/documents/21208577/harper-v-hall-nc-supreme-court-opinion.pdf) Subsequently, the facts in the Moore case clearly demonstrate that the court did not overrule the state legislature in any regard. The argument is between a gerrymandered congressional redistricting map endorsed by republicans, and a previous constitutional provision that was also endorsed by both parties in the state legislature. The relevant question remains, which branch of government should decide what the law is—and how it should be applied in order to remain true to constitutional principles.

As we saw in Marbury v. Madison, the judiciary is the branch tasked with deciding these questions. Stripping the judiciary of their constitutional duties, as the GOP would demand, using this ill-conceived doctrine, reduces state election laws to impotent wish lists.

Stripping state courts of the duty to adjudicate state election law, (or any state law), removes the courts from our tripartite system of government. The independent state legislature doctrine is nothing but the very legislative overreach that the GOP shrieks about continually, as they systemically work to dismantle democratic rule.

The independent state legislatures doctrine as an attack on democracy itself…

This doctrine is an attack on the very existence of democracy. It strips state courts of any right to judicial review regarding election law, both in congressional and presidential elections equally. Taken to its most extreme form, legislatures could bring back the most virulent forms of Jim Crow with impunity, (which is its allure to the GOP).

Redistricting is the tip of the iceberg, as the full spectrum of election law could fall under the umbrella of this fraudulent doctrine. Accountability and transparency in election law would be reduced to a cruel joke. There is no veto power for governors and no right to judicial review through the courts. This doctrine is a blank check for state legislatures. It is a criminal ploy pushed by a GOP determined to maintain power at any cost. It cynically exposes, GOP claims of ‘judicial restraint’, respect for precedence, and ‘originalism’ as little more than “doctrines of convenience, useful until they get in the way of a desired political result.” Courts Report – FINAL.pdf (senate.gov) 

A recent report prepared by Democratic Senators Stabenow, Schumer, and Whitehouse titled: Captured Courts, documented how the GOP has plotted to control the judiciary using legal deceit. To quote from the document,

”This report looks behind the curtain of the GOP’s long campaign of judicial capture, into the fundamental threat it poses to the rule of law and American democracy.” Courts Report – FINAL.pdf (senate.gov)

And, make no mistake, we are in a state of ‘judicial capture.’ Conservative jurists are promoting pseudo-legal theories lacking constitutional merit, such as the ‘major questions,’ ‘nondelegation,’ and the ‘independent state legislatures’ doctrines, which are designed to dismantle the very federal laws hated by the corporate state. 

Additionally, evidence of an ethically compromised SCOTUS is accumulating as conservative, dark-money groups spend millions on political pressure campaigns to promote the judicial ‘flavor of the month,’ guaranteed to produce SCOTUS decisions favored by corporate coffers. Secretive conservative legal group funded by $17 million mystery donor before Kavanaugh fight • OpenSecrets The idea of judicial independence from politics, especially at the U.S. Supreme Court has become another sick joke.

Our nation is at a legal and ethical crossroads, where we must choose between actual ‘rule of law,’ or the rule of ‘judicial capture.’ To pretend that the U.S. Supreme Court is above politics is as ludicrous as claiming to be “a little bit pregnant,” and just as obvious.

This article was originally posted on Buzzflash.

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Jeanine Molloff is a veteran urban educator specializing in communications disorders. She moonlights as a political commentator on various issues including civil liberties in an age of ‘terrorism’, ecological justice, collateral damage in war zones, economic equity and education. Jeanine has published with Huffington Post, OpEdNews, FireDogLake, Counterpunch and Huffington Post Union of Bloggers. In an era of state and corporate sanctioned censorship; she believes that journalism which demands answers to the tough questions is the last remaining bulwark of democracy. Now more than ever we need the likes of I.F. Stone over the insipid voices of celebrity infotainment. Jeanine works and lives in St. Louis, Missouri.

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