Can you explain this in a way that isn't terrifying to me?
no.
The Moore in Moore v Harper (currently the NC House Speaker) was an undergrad at UNC the same time I was, and a complete d-bag.
I don't guess that makes it any less terrifying.
This one is going to be interesting as a barometer of how lawless the court is going to get. The Vox piece on this makes an interesting point:
But it is surprising that the Court thought Moore was an appropriate vehicle to hear an independent state legislature doctrine case. That's because, even if you accept Gorsuch's theory that the state legislature and not the state judiciary bears "primary responsibility for setting election rules," the North Carolina legislature explicitly authorized its state's courts to hear gerrymandering lawsuits.
So we've got at least four justices likely saying that because state legislatures are supreme, they are powerless to require other entities to weigh in on elections.
I wonder if the media -- even the smart media like Vox -- are ever going to realize that law and precedent aren't the controlling issues here. The Vox writer tells us that Roberts is a likely vote to support democracy in this case because doing so would be consistent with precedent and his past positions. Maybe!
I co-sign 1, 2, and 3. This case scares me the most. I will add that the gun case result was supported by some LGTQT groups bc the standard for getting a permit was so vague that they were concerned that they would be the most likely ones kept from getting permits.
Just as a matter of psychology, it's fascinating how elected Democrats are utterly failing to reckon with what's happening to their world. AOC, god bless her, sees it.
As soon as the court agreed to hear the case, Biden should have done a prime time address about the court as a threat to democracy, and said that a wrong decision would be a redline and all options would be on the table. Acting like this is all normal is what lets people ignore it. And if you can't get people wound up about their votes not mattering, it's time for the retirement home.
Ogged: totally agree. There were reasons why choice groups didn't want to codify Roe previously. (If you codify, then the Rs can codify a ban when they get in power.) But the Dems need to forcefully move now.
Just in case everyone isn't clear on the doctrine, it's that whatever determinations a state legislature makes about federal elections are unreviewable by any authority including the courts, federal or state. If they decide to completely disregard vote counts and designate the candidates of their choice as the winners, that might be an unusual thing to do, but there's no authority in a position to correct them.
Which is exactly what the Republican candidate for PA governor is campaigning for.
7: Combine it with the idea that gerrymandering to produce a Republican majority in the state leg is a-ok, and hey presto! it's Karl "Turdblossom" Rove's dream of a permanent Republican majority. Only without the inconvenience of needing an actual majority.
In other words, what comment #1 said.
Further to 5. Is there any benefit when people who fled terrible, lawless regimes say out loud that the US is becoming like the countries they left. Or do people just think that's hyperbole? I thought GWB was fascist lite, but it was not really acceptable to use that language then, and I worry that it's too late to stop it now.
Biden: I know how to reach across the aisle and make Republicans come around!
Republicans: [continue to fail to come around and get even worse]
Biden: Ah! Well. Nevertheless
This is terrifying but if you're looking for an optimistic take: it's possible that the four justices who are all-in for this (who have demonstrated, after all, that they are thoroughly disconnected from reality) have miscounted the votes and are overplaying their hand. It's also possible (though probably less likely) that four votes for cert came from the other side and they perceive an opportunity to put a stake through this doctrine's heart.
Weird naive ConLaw question: is there anything that requires a state to have a legislature? I assume they all in fact do but if some state decided to have a weird constitution with just an executive branch, a judiciary and ballot initiatives, would they become incapable of designating electors by this doctrine because they have a legislative function but no nominal legislature?
I think 11 is slightly wrong.
I think Biden was overly optimistic, but I don't think he was blindly optimistic. He was in the Obama White House; he must have known there was a good chance tat Republicans would do exactly what they have done.
His claims of bipartisanship were aspirational; he genuinely believed it would be good for the country if he was able to negotiate successfully with congressional Republicans and that he was well positioned to do so.
He was wrong, but I don't think his reaction is, "Ah! Well. Nevertheless" the reporting is that Biden is frustrated and angry at this point in his presidency.
13: Well, that's the thing. I too thought there was a good chance he was trying to Republicans enough rope. But if that were the case, if he didn't pivot to "OK, I tried, now here are some strong actions" after Dobbs, when will he? There was barely any prepared response despite the ample warning; aides anonymously put out their concern that "more radical moves would be politically polarizing ahead of November's midterm elections, undermine public trust in institutions like the Supreme Court or lack strong legal footing"; it took a week and a lot of pressure for them to even add "filibuster carveout for Roe codification" to stated goals. This is flailing. I'm sure he's angry, but I wanted him to be ready.
I'm sure he's angry, but I wanted him to be ready.
I can't argue with that.
Chait makes a not-ridiculous case that Biden has a strong record of bipartisan accomplishment.
That's in Congress. As we learn in 5, Biden has failed to acknowledge the reckless extremism of the Republican Court, but the Democrats have tied their brand to institutionalism and the rule of law. It's hard to reverse that -- and it's far from a slam-dunk politically in a country where even the liberal media is committed to wearing blinders.
His claims of bipartisanship were aspirational
And necessary. Hasn't he already appointed more women of color to the federal judiciary than, like, all of his predecessors combined?
Weird naive ConLaw question: is there anything that requires a state to have a legislature?
The Constitution requires them to have a "republican form of government" but I don't know if courts have ever defined what that entails exactly. They do all have legislatures but they vary a lot in form and size.
It would be very hard in practice for a state not to have a legislature, because the laws could never change. If there's any way to change the laws, I think the person or body with the power to do that would be the legislature, even if it wasn't an elected body of representatives.
I expect we'll see a lot of exciting new experiments in governance in the coming years.
Biden was right when he said he could get bipartisan accomplishments! We got some extra road funding. A truly great use of a once-a-decade trifecta!
/s
I would be willing to read a long-form article (which I almost never say) interviewing senator/Rep's gen-z staffers about what they think is behind their bosses' reluctance to do _anything_. How much is experience of how watergate went, how much is pure senility, how much is 'Mitch opens the door for me so how bad could he be?', how much is pure belief in 'America is great in its essence so fascism is impossible'., pure narcissism, etc.. Even putting aside what the GOP wants to do to the country, I cannot comprehend anyone having a lynch mob directed at them and not wanting to try to do anything about it.
Chait makes a not-ridiculous case that Biden has a strong record of bipartisan accomplishment.
Thanks, I appreciate having an interlude of non-dread.
It seems likely that the actual legal principle here is 'federal courts should intervene to block actors who are not subject to GOP gerrymandering from effectuating a republican form of government"
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Maybe this should go in a different thread, but here's the link from Slate about a deal Biden did w/ McConnell.
Should we be writing to our Senators asking them to oppose this?
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The Constitution requires them to have a "republican form of government" but I don't know if courts have ever defined what that entails exactly. They do all have legislatures but they vary a lot in form and size.
I don't think the courts have ever taken action based on that clause.
I forget where I read it, maybe LGM, but apparently the early Court carefully carved out its power choosing and handling cases in ways that didn't get the political establishment mad at them - for example, Marbury never actually got to be a justice of the peace. So it makes sense they stayed the hell away from it.
26: I want to read a history of it, but a I think I heard somewhere that the people who brought the suit wanted to lose in order to establish the precedent.
The early history of the Court is interesting and I'd also like to read more about it. Particularly the role of John Marshall, who was a fascinating, complicated character. He was a southern Federalist who used his position as Chief Justice strategically to steer policy in his preferred direction for decades after his own ideology had become entirely defunct everywhere else in the political system.
(Parenthetically cross-pollinating from Balloon Juice, because I think we have a couple of New Yorkers here:
("This ruling is especially important in New York, where some Democrats who should know better are Bitcoin-curious, mainly because Wall Street wants to get in on the shitcoin action. The most famous example is New York Mayor Eric Adams, but Kirsten Gillibrand is also in the mix. She and Wyoming's dumbest Republican, Cynthia Lummis, have teamed up to push legislation "regulating" the crypto industry by basically giving it everything it wants. I'll be writing to Gillibrand to tell her to drop this shitcoin nonsense, and I suggest that all New Yorkers call or write her office, too."
(Have at.)
Yep, I am plausibly going to be defending the case when they sue over the permit denial. More likely than not the Albany office will handle it, but if they're busy it could come to my group. I am desperately hoping DEC dotted all the i's and crossed the t's.
Go on dawlin, you make a mother proud!
WADR, I aver that we shall need more Bonnie Abbzugs than Bella Abzugs in the near and intermediate term future. Long term future = climate apocalypse, so no point in worrying about that.
Electricity prices being what they are, now is a great time to make hay about how wasteful bitcoin mining is.
33: From a carbon perspective, electric vehicles win, but are they still cheaper to fuel?
I don't know. Someone here, apologies but I can't remember, recommended a couple of models to me to try, but everything local is sold out or stupid expensive.
Yes, electric is far cheaper per watthour than gasoline, especially since evs are much more efficient
. And it's not like gasoline is getting cheaper now either.
We bought a hybrid minivan last week. Gets delivered on Tuesday.
Since a minivan is already a hybrid of a van-van and a station wagon, it's a hybrid squared.
Tim drives an outback with extra power. I have a tiny Prius c hybrid which is more efficient in the city than a regular Prius but less efficient on the highway. I think it's really 45 mpg, but it says 50 something. I'm hoping there will be an electric Subaru Crosstek when mine goes. Maybe in 20 years the shingles which double as solar panels will materialize, and I can go off the grid.
I like to call the other kind a maxivan.
I worked out that a hybrid vs a regular minivan should save us 10k-15k in gas over the next 10 years. Which says something depressing about our lifestyle, environmentally.
7/8: This is the greatest among many reasons that I am scared shitless of Mastriano. With our current configuration of PA legislature and SCOTUS, the sidelining of the state courts, the at-best-uselessness of the federal elected branches, and the PA governor's appointment of the Secret of State, I don't see how it's possible to come back from that. And everyone outside PA should care for the guaranteed 40 net votes indefinitely.
44: Your Secretary of State is appointed?!
Yes,, the state's chief election official appointed by the governor with the consent of the state Senate.
46: If I were writing a constitution from scratch, I might think that should not be an elected position. Certainly, it was screwed up to have Kemp rum for Governor and be Secretary of State at the same time, but in the current climate, I think that having an independent Secretary of State is probably important. MA has had Galvin for a long time. I think this is his last term, but I would vote for him again if he'd be willing to run. (He's 72 and has been in office since 1995.). I don't know how people do that job when they have ambitions for higher office. He had a primary challenger backed by Seth Moulton a while ago claiming we needed new blood and a new direction, but it was clear that the candidate saw it as a stepping stone office, whereas Galvin seems to have been perfectly happy doing the job he got elected to - in an almost non partisan way.
It's not a trifecta as to every issue. Only as to those issues Manchin/Sinema are on board for. Judges yes, choice no. Biden has been rejecting/soft-pedaling show horse moves -- like opening national parks to abortion providers, or declaring for Supreme Court expansion -- which, when they fail to work out, only show his powerlessness.
No codification in 2009 would have survived 2017. We're going to get a national ban as soon as there's a Republican trifecta, and when next there's a Democratic trifecta, it'll be repealed. Avoiding this oscillation -- which is really hard on infrastructure -- was the great beauty of winning the question at the Supreme Court. Too bad we couldn't get H Clinton into the White House.
On the Kentucky thing, one can't but admire Gov Beshear's willingness and ability to play some pretty hard ball with the White House. I assume that whoever is the patron of the two US Attorney positions has been calling the WH for updates, and this translated into the higher-ups having someone talk with McConnell to see what it would take. Beshear (correctly) thinks the price is way too high, and has, surely, completely tanked the thing.
48.last: This thing in particular was one that I was willing to give Biden some slack on given his absolutely stellar record on judges to date. In practice not much of a concession, but granted I think symbolically it is a mess.
And of course, the real WTF which never gets much play in the media is that McConnell and Rs being extortionists on things like the US Attorneys (and in many other instances just simply blocking), I think one of the somewhat unstated aspects of our current political situation is that Rs are credibly showing they can fuck things up to a large extent if they are not in power. And in fact the last year and a half on Covid specifically might have gone better if Trump had won. Fox leading the vaccination push. It is of course basically "nice bit of governance you've got there be a shame if something happened to it."
Sigh.
"We won't actually make the trains run on time, but the alternative is the trains barely running at all."
Shapiro has taken shit in some quarters for seeming to put his thumb on the scale for Mastriano in the primary.
On the "independent state legislature" (ISL) crap I think there are a couple of things to note.
To me there seems to be an escalating series of potential applications of increasing danger to election integrity. (Open to correction on any place I am showing my ass on this ...)
1) As in the NC gerrymandering case there are applications of the principle that would take place entirely before an election. Judicial review of legislative actions not allowed. (And I guess an extreme version would say there is no executive branch veto?) One thing is that this gerrymandering case is in fact limited to "The Times, Places and Manner of holding Elections for Senators and Representatives" while most state election laws and matters are much broader and apply to all manner of other races.
2) But I am guessing any ruling would also apply to post-election lawsuits so things like the variety of crap that Trump et al came up with in 2020 could not be reviewed by the courts. But not sure how the open-ended stuff in laws and/or post-election challenges to ongoing election practices get decided (see Wisconsin in 2020 for instance*). By vote in the "legislature"? with no executive signing required? Just seems a mess. But of course ALEC or someone will come up with a model law to set up a scheme under the doctrine.
3) And then in the extreme, the legislature just declares the winner under the cover of some vague notions of fraud or illegality. For instance with this doctrine, the initially deadlocked Wayne County certification (without Wayne, Michigan goes easily to Trump) would seem to have a much greater chance of "working" (and it would have been a huge mess even without ISL BS but I guess courts would have decided). Although the Rehnquist invocation of ISL in 2000 is I think regarded as "not serious" I recall the Florida legislature making a lot of noise about taking charge if the Florida Supreme court recount had taken place and put Gore first. And of course they had the executive as well in that case. Where the executive or the courts are also in R hands I assume ISL will not necessarily apply (see DeSantis and redistricting this year for instance).
*To my understanding this was the only post-2020 lawsuit that was both a close call and potentially material to the results of the presidential election. A bunch of claims that put several hundred thousand Dane (Madison)/Milwaukee county votes at risk that was only decided 4-3 in Wisconsin Supreme Court (one R judge joining the Ds) with the dissent arguing that votes should have been thrown out despite adhering to ongoing election practices.
Maybe the Supreme Court will say "ISL theory is correct but in this case they did expressly delegate some of redistricting to courts, and haven't repealed it". So continuing the slow coup while letting pundits say "silly alarmists".
53: Yeah, it should be a pretty hard case in which to advance ISL, but if they think they have it in the bag, having it apply even when the freaking State Legislature explicitly invoked judicial review makes for a strong precedent for everything else*.
I don't know, I suspect Kavanaugh and Barret will look for the solution that is most likely to keep them from being faced in the near future with a "hard" court case which essentially has then choosing the next president. Who knows which way that sends them here. I fear Gorsuch is a done deal on this one (along with Alito and Thomas of course).
It's really Supremacy Clause gone wild to conclude that the off-hand verbiage of the US Constitution overrides the restrictions/provisions of state constitutions.
54.* But of course in Bush v Gore the Supremeosuckwads ignored this little bit of Florida law: "If a judge decides that a contest identifies a legitimate problem, then under section 102.168(8) of the Florida Statutes Annotated, the judge can "provide any relief appropriate under such circumstances."
Scalia gave several different prickly defenses of the whole debacle (and remember the stay was worse than the decision) but his most "honest" was in an interview with Piers Morgan:
But Al Gore wanted the courts to decide it. So the only question in Bush v. Gore was whether the presidency would be decided by the Florida Supreme Court or by the United States Supreme Court. That was the only question, and that's not a hard one.
If that was the only question (and it was not, just Scalia being his late life internet trollish self), then it was in fact easy: The Florida Supreme Court (or at least them controlling the mechanism to resolve post-election disputes in accordance with Florida law).