America’s Democracy hangs by Slender Threads

Breakfast with Bwana

The independent state legislature theory unravels

By Anil Madan

January 6, 2021, marked a sea change in American democracy. On that morning, if someone had proclaimed that America’s Democracy, the oldest in the world, was the strongest and unassailable, it would have been difficult to hear a dissent. By that afternoon, a sitting President, in thinly couched language, tried to incite a mob to pressure Vice President Pence and Republican Senators to disregard the Constitution and reject the lawfully appointed electors in the just completed election of November 2020. To be sure, since just after the election, there had been a series of challenges to the election results by Trump and his supporters in the courts, and administrative bodies. More than 60 lawsuits were dismissed and most described as frivolous. Courts sanctioned Trump and the lawyers who took up his cause for filing baseless claims.

Independent state legislature theory? US Supreme Court isn’t buying it – Bloomberg

The rumblings from Trump’s discordant and dissonant griping continue. As a result, a sizable cohort of Trump’s supporters continue to question the 2020 results. What is even more troubling than the mob mentality of Trump’s gullible MAGA (Make America Great Again) crowd, are the susurrations of the Republican legislators, at the state and federal levels who continue to champion the cause of this seditionist former president.

The Elections Clause of the U.S. Constitution states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Congress has the power to change regulations adopted by a state legislature except as to the place of choosing Senators.

Frustrated by their inability to overturn Joe Biden’s resounding victory in the 2020 election, Republicans around the country latched on to the theory that the Elections Clause gives exclusive authority to state legislatures to set the rules for federal elections.This assumes that Congress does not change the state rules as the Clause authorizes it to do. With a closely divided Congress, it would be impossible for Democrats to do that. Republicans saw this as their path to circumventing the popular vote and manipulating the selection of electors as a way of helping Donald Trump or another Republican craft a “victory” in 2024 and elections beyond.

North Carolina’s legislature, acting under authority of the Elections Clause, drew a Congressional map in an obvious exercise of gerrymandering, to favour Republicans. The North Carolina Supreme Court eventually ruled that the partisan map violated the state Constitution. The U.S. Supreme Court (SCOTUS) has held that partisan gerrymandering presents a political question that the courts cannot resolve, i.e., that such questions are nonjusticiable. Thus, except when prohibited factors such as race, national origin, or creed, are used to deny fair representation by crafting gerrymandered districts, the federal courts will not interfere.

But “simply because the Supreme Court has concluded partisan gerrymandering claims are nonjusticiable in federal courts,” the North Carolina Supreme Court explained, “it does not follow that they are nonjusticiable in North Carolina courts.” The State Supreme Court also rejected the argument raised by Republicans, that the Elections Clause in the Federal Constitution vests exclusive and independent authority in state legislatures to draw congressional maps. This theory, they argued, precludes any oversight or review of the state legislature’s actions, even by the courts of the state. 

The Republican state legislatures who were behind the gerrymandering and the so-called Independent State Legislature theory, filed an emergency appeal with the SCOTUS seeking a stay of and eventual invalidation of the North Carolina Supreme Court’s decision.

Unsurprisingly, the SCOTUS did not stay the operation of the decision, but surprisingly, granted certiorari, i.e., agreed to review the case.In the meantime, in a curious twist, the North Carolina Supreme Court, on application of the Republican legislators, reconsidered and overruled its earlier decision that gerrymandering presents a justiciable question. However, that did not end the matter because the order striking the Congressional map remained in effect. This set the stage for the SCOTUS to review the case because a part of the North Carolina Supreme Court’s decision on a federal constitutional issue remained in effect.

In an opinion for the majority, Chief Justice Roberts dealt with the state legislators’ theory summarily. He pointed out that since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts.In fact, in perhaps the most famous case in American constitutional history, Marbury v. Madison, the Supreme Court proclaimed: “It is emphatically the province and duty of the judicial department to say what the law is.” In that case, the SCOTUS confronted and rejected the argument that Congress may exceed constitutional limits on the exercise of its authority. Roberts wrote: “Certainly all those who have framed written constitutions,contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the Constitution, is void.”

Let me leave it there by adding that state legislatures do not act in a vacuum. For an act of the legislature to become law, a bill must be passed by both the lower and upper houses. If there is a discrepancy between the two versions of a law, it must be resolved by a committee and then sent to the Governor for signature. If the Governor does not sign or expressly vetoes the bill, a two-thirds vote of each house is necessary for the bill to become law. Thus, a mere declaration by a state legislature has no effect without these additional steps. And, as C.J. Roberts noted, such laws have always been subject to review by the state’s courts for conformance to the state (and federal) constitutions and by federal courts for conformance to the federal constitution.

Roberts cited a precedent to the effect that a state legislature’s exercise of authority under the Elections Clausemust be in accordance with the method which the State has prescribed for legislative enactments. In other words, the means of making legislative enactments operative as law, is as I have described above. As Roberts explained, the fact that state legislatures have authority to act, where the exercise of federal authority or the vindication of federal rights implicates questions of state law, SCOTUS has an obligation to ensure that state court interpretations of that law do not evade federal law.  That should have been the end of the discussion.

As the majority opinion made its commonsense ruling, there is nothing remarkable about the case. In fact, C.J. Roberts was joined by Justices Sotomayor, Kagan, Kavanagh, Barrett, and Jackson for a 6-justice majority. Justice Kavanagh wrote a short concurring opinion fully joining the majority opinion.

But, as we know, the right-wing yahoos on the court form a wacky group sometimes joined by Kavanagh and Barrett, and occasionally C.J. Roberts also loses his footing. We should take a moment to note the utter lunacy of a dissenting opinion written by Justice Clarence Thomas and troubling fact that it was joined in its entirety by Justice Gorsuch. Justice Alito joined only the first part that relates to Thomas’s contention that the case was moot or that SCOTUS did not have jurisdiction and should be dismissed.

Justice Thomas began by conceding that the phrase “the Legislature thereof” refers to the lawmaking power as it exists under the State Constitution and that the function contemplated by the Elections Clause “is that of making laws.” He then veered and declared thatin prescribing the times, places, and manner of congressional elections, the lawmaking body or power of the state, as established by the state Constitution performs “a federal function derived from the Federal Constitution,” which thus “transcends any limitations sought to be imposed by the people of the state.” With all respect, this is utter nonsense. Sophistry.

Thomas went on to suggest that whereas a state court could review the propriety of a legislative enactment pursuant to the authority of the Elections Clause, it was limited to applying only the federal constitution, and not the state constitution. In other words, he twisted himself up and declared that whereas state legislatures must follow the procedures set out by the state constitution on the enactment of laws, no court can review whether those procedures were followed.

We have here another example of why the arguments of textualists who purport to decide constitutional questions solely based on a literal reading of the text, are all too often distanced from commonsense and reason.

Justice Thomas’ dissent would have severed another slender thread by which American Democracy hangs. It is astonishing that Justice Gorsuch subscribed to his sophistry and nonsense. This suggests deep ideological division within the court that is causing some justices to lose their sense of reason and resort to petty need to dissent. Another slender thread.


Mauritius Times ePaper Friday 21 July 2023

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