When I read Frank Miele’s remarks at RealClearPolitics on the Supreme Court’s rejection of the “independent state legislature” theory:
The mainstream media (and of course their Democratic Party allies) celebrated the court’s decision in Moore v. Harper that rejected the so-called “independent state legislature†theory. The New York Times called the theory “dangerous.†Vox said the ruling was a “big victory for democracy.†Those who supported the independent state legislature “theory†were called extreme, fringe, radical, and worse. In other words, they were Trump supporters.
The only problem is that if the theory is extreme, then so is the U.S. Constitution, because no matter how much the 6-3 majority insists otherwise, it isn’t a theory at all. It is the plain language of the Constitution. Check it out for yourself.
Article 1, Section 4 of the Constitution says specifically, “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.â€
It is not the governor or the courts or even the people of the state which set election rules, according to the Constitution, but the legislatures. Mind you, the state legislatures are not entirely unchecked in their decision making, but it is the Congress of the United States that provides the checks and balances, not the courts.
And as for presidential elections, the matter is even more cut and dried. Article 2, Section 1, declares, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.â€
Notice again that the Constitution gives state legislatures the exclusive power to determine the manner in which electors are appointed to vote for president and vice president. In this case, even Congress does not have the authority to override the legislatures.
I was reminded of my dad’s complaints about lawyers whose only knowledge of the law was the U. S. Constitution.
I think that the court’s decision was completely predictable and not on the basis of left/right ideology but based on the court’s longstanding claim of the authority of legal review. That’s something else you won’t find in the Constitution. You will search in vain for that in the Constitution but it has been a persistent part of our system since Marbury v. Madison as I assume Mr. Miele learned in his grade school civics class. It will not go away peacefully.
As I read the SCOTUS opinions that’s what they were upholding. The Constitution contains important law but it isn’t the only law. There’s the common law, state laws, and the power of courts to review state and federal laws. The Constitution does not empower state legislators to ignore state law or state or federal courts.
Indeed all around. By Miele’s logic, “Congress may at any time by Law make or alter such Regulations” means that the President doesn’t need to sign said law and the Supreme Court may not review it. I can’t imagine the Justice who would sign on to that notion.
I think to some extent the case was a nothing burger. After oral arguments, the Republicans gained a couple seats on the NC Supreme Court and reversed the opinions on appeal. Thomas, Alito and Biden seem to me to have the better argument that the case had become moot. What was left to arguably review was a fragment of the issues likely to arise. For instance, can Judges appoint a commission to draw the maps when it finds the politically drawn maps too political?