https://www.yahoo.com/news/why-scotus-could-unleash-frankenstein-011017263.html
The Daily Beast
Why SCOTUS Could Be About to Unleash Frankenstein’s Monster
Shan Wu
Sun, December 4, 2022 at 5:10 PM
In Moore v. Harper—scheduled for oral argument on Wednesday, Dec. 7—the
Supreme Court will decide whether to resurrect the previously dead
“Independent State Legislature Theory”–in a way that some commentators
believe may pose “an existential threat to our democracy” and could
enable “the Republican blueprint to steal the 2024 election.”
Proponents of the “ISLT”–Independent State Legislature Theory–believe
that the U.S. Constitution bestows unreviewable power upon state
legislatures to determine how congressional elections–and by extension
Presidential elections–are conducted.
The case is so controversial that more than 70 amicus briefs–“friends of
the court”–have been submitted, including everyone from former
California Gov. Arnold Schwarzenegger to the ACLU, with 48 of them being
opposed to the legitimacy of the ISLT.
Just what is the ISLT? Its proponents claim that the “Elections Clause”
of the U.S. Constitution, which states that state legislatures shall
prescribe the “Times, Places and Manner of holding Elections for
Senators and Representatives,” means no court can review any actions
taken by a state legislatures with regards to voting in the state.
The specific case before the U.S. Supreme Court is about
gerrymandering–the practice of redrawing Congressional districts to
favor one party-and arises from the North Carolina Supreme Court’s
decision to strike down its Republican state legislature plan to grossly
manipulate the state’s congressional districts in favor of Republicans
as being unconstitutional under the North Carolina state constitution.
The North Carolina Supreme Court found that the Republican plan was an
“egregious and intentional partisan gerrymander” that would give a
“greater voice” to Republican voters over “any others.”
After a state court appointed a special master to design a fair map, two
Republican legislators asked the U.S. Supreme Court to step in and rule
that no North Carolina court can review the state legislature’s decision
because the ISLT would make such review a violation of the U.S.
Constitution.
SCOTUS’ decision to accept Moore v. Harper’s arguments is alarming
because the ISLT interpretation of the U.S. Constitution has been
repeatedly rejected by the highest court in the land, dating back to
1916 with numerous decisions recognizing that state legislatures must
still adhere to their own constitutions. And those state constitutions
regularly create the sharing of legislative power with courts and
governors (veto power) even when it comes to election laws.
The Most Important SCOTUS Case No One’s Talking About
So given the demonstrated capacity of the new SCOTUS conservative
supermajority to ignore and overturn precedent—most notably in the Dobbs
decision which struck down the protections for a woman’s right to
abortion that had stood for decades–the decision to hear the case raises
the likelihood that the conservatives may again be looking to overturn
precedent.
Indeed, interest on the part of conservative SCOTUS justices in using
ISLT to help Republican outcomes was seen in the 2000 Bush v. Gore case,
where then Chief Justice Rehnquist’s concurring opinion referenced ISLT
in saying that another reason to stop the Florida Supreme Court from
ordering a state-wide manual recount–which might have given the
Presidency to Al Gore–was because the Florida Supreme Court was
violating the Elections Clause. More recently, Justices Kavanaugh,
Gorsuch, Alito, and Thomas have all expressed interest in supporting ISLT.
If these four conservatives were joined by either Chief Justice Roberts
or Justice Amy Coney Barrett then SCOTUS might make ISLT the law of the
land. So what could this mean?
For starters, gerrymandering would be completely uncontrollable, meaning
whichever party controlled the legislature could redraw Congressional
districts at their whim whether or not such maps violated the state’s
constitution. And just in case you are wondering if federal courts could
step in: the answer is no, as to gerrymandering, because a conservative
majority of SCOTUS-Chief Justice Roberts, as well as justices Gorsuch,
Alito, Thomas and Kavanaugh–ruled in the 2019 case of Rucho v. Common
Cause that gerrymandering was a purely political issue that federal
courts could not review.
The veto power of governors over any state election laws could also be
nullified making the legislature the only branch of state government in
the area of election law.
At the Presidential election level, ISLT could be used to “take power
away from voters when picking electors for the Electoral College or to
make state lawmakers, not courts, the judges in disputes after the
election”–similar to the theory behind the fake electors scheme that
Trump supporters tried to use to overturn the results of the 2020 election.
Indeed, John Eastman, the creator of the idea that new slates of
electors could be submitted and/or that Vice-President Pence could
overturn the election has submitted an amicus brief in Moore
specifically calling for SCOTUS to overturn any precedents that have
previously rejected ISLT.
A conservative majority of SCOTUS decisions to embrace ISLT would also
create a flood of election cases that would enormously burden a federal
court system already seeing a record high of such cases by “invent[ing]
an entirely new constitutional cause of action.”
In a recent panel discussion hosted by the Brennan Center for Justice
and the New York City Bar, Professor Carolyn Shapiro noted that the ISLT
would instantly transform every election case into one with federal
question jurisdiction, thus throwing all of these cases into the federal
courts.
As the court of last resort, SCOTUS would become the sole decision-maker
for all election disputes which arguably would make it a super judiciary
holding far greater power than either the Executive or Legislative
branches of government.
If this should come to pass, the SCOTUS conservatives will no doubt rely
upon the so-called “originalist” doctrine as a fig-leaf to hide their
real motivation. That real motivation is simply the exercising of their
new-found power. They will do it because they can.
In Mary Shelley’s 1818 novel, Frankenstein, a young scientist, Dr.
Victor Frankenstein, discovers a method by which he can resurrect life
from the dead and creates his own monster. As we all know, the monster
becomes uncontrollable and ultimately turns upon its creator. Dr.
Frankenstein’s motivation is never made explicit by the author, but he
appears to do it because he can.
SCOTUS, an institution which has now managed to lose the trust of the
majority of Americans might do well to remember this tale about what
destruction can be wrought by the unchecked use of power.
AND
https://www.thedailybeast.com/the-most-important-scotus-case-no-ones-talking-about
We need to talk about Moore v. Harper.
The right-wing rogues in the Supreme Court have agreed to hear a case
that very well might put a judicial capstone on the GOP’s ongoing coup
attempt, which could be the death knell for our democracy.
The nation is still reeling from the blitzkrieg unleashed by an extreme
Supreme Court that used its last term to bulldoze a woman’s right to
abortion, neutered the EPA’s ability to regulate greenhouse emissions,
limited states’ rights to regulate guns, eroded the separation of church
and state, and weakened civil rights by ruling law enforcement can’t be
sued for failing to read a person their Miranda rights.
But the Supreme Court isn’t done trying to implement minority rule and
advance its Christian nationalist agenda. They have agreed to hear Moore
v. Harper, the most consequential case to our nation’s democracy that
most Americans still aren’t talking about.
In Moore, North Carolina’s Republican House speaker wants to restore
heavily gerrymandered congressional maps drawn by GOP elected officials
that were rejected by the North Carolina Supreme Court. The court
ordered them redrawn because they gave the GOP an “extreme partisan
advantage” that violated the state constitution. In response,
Republicans are invoking the “independent state legislature doctrine”
which advances “the idea that, under the Constitution, only the
legislature has the power to regulate federal elections, without
interference from state courts,” as Amy Howe put it in SCOTUSblog.
If the court buys this nonsense theory, then the Republican-controlled
state legislatures would be immune from any interference from state
courts, governors, and elected officials who step up to protect voting
rights and fight back against “constitutional mischief.” Republicans are
arguing the Constitution allows state legislatures to completely ignore
state Supreme Court decisions when passing laws related to federal
elections, and this opens the door for the Supreme Court to say they
could ignore the governor and act on their own.
To put it plainly, if President Joe Biden wins battleground states again
in 2024, the Republican-controlled state legislatures of Wisconsin,
Michigan, Georgia, Arizona, and Pennsylvania could simply reject the
will of the majority and install their own slate of electors and
hand-deliver the presidency to a Republican.
“Sixty percent of state legislatures around the country are controlled
by Republican majorities, who are increasingly radicalized and advance
dangerous conspiracy theories. How do you think this will end? ”
That’s exactly the crazy plan outlined by Trump-allied right-wing
attorney John Eastman in his six-point memo, which a federal judge
concluded was a “coup in search of a legal theory.” During his
deliberate and sober testimony before the Jan. 6 Committee, retired
Judge J. Michael Luttig, a life-long conservative, eviscerated the
independent state legislature doctrine as dangerous bullshit and warned
that “Donald Trump and his allies and supporters are a clear and present
danger to American democracy.”
Judge Luttig also told then-Vice President Mike Pence that he had no
authority to overturn the results and must follow the law and certify
the 2020 election, otherwise “that declaration of Donald Trump as the
next president would have plunged America in what I believe would have
been tantamount to a revolution within a constitutional crisis in
America.” Constitutional law scholar Vikram Amar concluded the
independent state legislature theory advanced by Republicans “is as
wrong-headed as it is treacherous.”
Conservative justices Clarence Thomas, Neil Gorsuch, Samuel Alito, and
Brett Kavanaugh have already signaled that they support a version of the
independent state legislature doctrine. Meanwhile, the alleged moderate
on the Supreme Court, Chief Justice John Roberts, has already used his
pen to eviscerate the Voting Rights Act in Shelby v. Holder and gave a
green light to extreme partisan gerrymandering in Rucho. If you haven’t
noticed, our voting rights are currently under active assault from an
unprecedented wave of GOP voter suppression efforts across the nation.
On Friday, conservative judges in the Wisconsin Supreme Court did their
part to erode voting rights by prohibiting most ballot drop boxes.
Slate’s Mark Joseph Stern analyzed the ruling and said the court uses
language questioning the legitimacy of the 2020 election. Currently, a
majority of Republican voters believe in the Big Lie, along with more
than 100 Republicans who won their primaries in May. The GOP has
unleashed a “precinct strategy” using an “army” of right-wing activists,
including attorneys, to contest and disrupt upcoming elections. The RNC
said the violent insurrectionists who sought to overturn our election
were “ordinary citizens” engaged in a “legitimate discourse.” Sixty
percent of state legislatures around the country are controlled by
Republican majorities, who are increasingly radicalized and advance
dangerous conspiracy theories.
How do you think this will end?
In response, President Biden urged the nation on Friday to “vote, vote,
vote” right before signing an executive order to protect access to
abortions. Voting is the administration’s solution to combat this “out
of control” Supreme Court’s recent overreach in Roe and “extremist”
Republicans' ongoing assault against our rights. Not expanding the court
or limiting its jurisdiction—but voting. Of course, we should all vote
out as many Republicans as possible, however, voting won’t be enough if
the Supreme Court rules in favor of Republicans and against democracy in
Moore.
There is some hope as senators are “close to a deal” on amending the
Electoral Count Act of 1887 that could remove the loopholes that will be
exploited by Republicans to succeed in their coup. The Brennan Center
For Justice recommends Congress limit the vice president’s role in
counting presidential electors. They added Congress must also “clarify
the rules around the appointment of electors” by replacing “vague
language about ‘failed’ elections with clearer language establishing
that electors may only be selected after Election Day in very
exceptional circumstances that make voting impossible, like a major
natural disaster, and that the default remedy in such instances is to
extend voting in affected areas, not to redo the election or appoint
electors by some other means.”
Of course, none of this matters when Republican elected officials and
conservatives judges are not beholden to the Constitution, rules,
democracy, or norms to advance their extremist agenda.
In the meantime, President Biden and Democrats must sound the alarm
about the GOP’s ongoing coup and educate the majority, pressure the
Supreme Court with threats of expansion and reform, and hope enough
Republican senators come to their senses and reform the Electoral Court
Act of 1887 to save our democracy. Or, we can just hope that the Supreme
Court refuses to yield to treachery and “constitutional mischief.” Call
me pessimistic on that last one.
