Vox wrote:The headline of this piece is likely to turn a few heads. The Supreme Court’s last term, after all, was an orgy of conservative excess unlike any since the Court’s Great Depression-era attacks on the New Deal. And it culminated in the demise of Roe v. Wade, arguably the most closely watched Supreme Court decision since the justices declared school segregation unconstitutional in 1954.
But this term, a potentially even more consequential issue than the right to an abortion is on the Court’s docket: democracy itself. A single case, Moore v. Harper, threatens to fundamentally rewrite the rules governing federal elections, potentially giving state legislatures (some of which are highly gerrymandered themselves) nearly limitless power to skew those elections.
https://www.vox.com/policy-and-politics ... lean-water
Wikipedia wrote:Under the ISL theory, a state legislature's plans for new congressional districts are not overridable by a state supreme court's interpretations of its state's own constitution, including any provisions limiting partisan gerrymandering found therein.
In 2015, ISL proponents said that Legislatures cannot delegate this authority (see the dissent in Arizona Redistricting Commission case (2015)). I think there’s a textualist argument to be made that finds that Redistricting Commission was constitutional, but I won’t get into it here. But ISL proponents were pretty clear that the Redistricting Commission was unconstitutional under the Elections Clause, and only the Arizona legislature had the authority to draw election districts.
Now, ISL is going further under Moore v. Harper to say that neither the state’s executive branch, nor the state’s judiciary can intervene on Election matters, and the State Legislature is above any sort of review on the subject. So an elections bill which would normally be subject to the traditional constitutional procedures of a bill being 1.) enacted by both Houses of the Legislature, 2.) signed or veto by the Governor, and then 3.) subject to review by the courts is all thrown out the window.
ISL is a fundamental breakdown of the American system of checks and balances. Yet, it is in danger of being codified by this court. How can a State legislature occupy this weird limbo of being subject to its own constitutional restrictions in every aspect of civic life except when it comes to elections? The State legislature is only the legislature as duly authorized by its own constitution. If a Legislature, pursuant to ISL theory, takes some action that exceeds its constitutional restrictions, but the action is tangentially related to elections, how would we even begin to decide the proper membership of this extra-constitutional body? Because under ISL, we’ve decided that a Legislature is beyond the other traditional mandates of its own constitution when it comes to the Elections Clause, so how the state’s constitution outlines how it’s legislators are chosen could be discarded as well. Can we have a situation where we have competing Elections clause legislatures? How would we even adjudicate that?
If SCOTUS makes a maximalist ISL ruling next term, I’m not sure there would be anything that the federal government could do that would be consistent with ISL. At the very least, it would be a steep uphill battle. And then, if the feds were successful, that would scramble a lot of eggs- both politically and legally- given our long history of a decentralized election system. And, given all that, I’d be asking what are we trying to accomplish here?
And I guess I wouldn’t think the feds are ‘relying on state courts’ in this instance. This is just how every single state in the country works. Legislatures pass bills, executives sign or veto them, and the judiciary reviews them for constitutionality.
Worse, this whole constitutional can of worms is being put forward only by a dangerous minority party that sees an expiration date on their ability to govern in this country, as an attempt to short-circuit the democratic process.