Major breaking Supreme
Court decision story from the LA TIMES as well as from most other
major news outlets with this headline:
“Supreme Court
rejects GOP redistricting claim in North Carolina elections case”
The Supreme Court on Tuesday (June 27) ruled against NC Republicans
saying state lawmakers do not have sole authority to set rules for federal
elections without interference from state judges.
The 6-3 decision
in Moore vs. Harper,
was written by Chief Justice John Roberts saying: “When
state legislatures prescribe the rules concerning federal elections, they
remain subject to the ordinary exercise of state judicial review. State courts
retain the authority to apply state constitutional restraints when legislatures
act under the power conferred upon them by the elections clause.”
Justices Clarence Thomas, Samuel A. Alito, and Neil M.
Gorsuch dissenting that the case should have dismissed given state-level
developments with Thomas writing for the three: “This is a straightforward case
of mootness. The federal defense no longer makes any difference to this case –
whether we agree with the defense, disagree with it, or say nothing at all, the
final judgment in this litigation will be exactly the same.”
Abha Khanna, the
attorney representing the plaintiffs in the case, celebrated the ruling in a
statement saying: “This is a resounding victory for free and fair elections
in the United States. The independent state legislature theory is a dangerous,
fringe legal theory that has no place in our democracy. In its most extreme
form, the Independent State Legislature Theory could have weakened the
foundation of our democracy, removing a crucial check on state legislatures and
making it easier for rogue legislators to enact policies that suppress voters
and subvert elections without adequate oversight from state court. We are
incredibly relieved that the Supreme Court decisively rejected this dangerous
theory.”
Voting rights advocates also praised the decision as
upholding a key protection for voters across the country not just in NC.
Former AG Eric Holder
described the decision as: “A win for our system of checks and balances,
the cornerstone of American democracy.”
My 2 Cents: Truly a win for democracy and against any narrow-mined,
wild-eyed view of who, how, when, or where we can vote, whether in NC or across
the nation.
A solid win for voting
rights based on the simple premise that our right to vote must be sustained and
based on elections that are free, fair, safe, and secure. Somehow the NC GOP
just didn’t seem to grasp that time-proven concept – maybe they do now.
Thanks to Chief Justice Roberts and the other 5 who voted with him and shame on the 3 dissenters based on Justice Thomas dissent statement.
The nation is now better off with this
historical decision.
Thanks for stopping by.
Very long post regarding the
most-critical and most-important election law case ever before the U.S. Supreme
Court with this short intro from the Washington Examiner with this headline and lots of links in my review of this case
posted below:
“How
a Supreme Court case could inject chaos into the 2024 elections”
The case: “State Legislature Supremacy Doctrine” (Moore v. Harper) in North Carolina. If allowed to proceed, it could strip state
courts of the power to oversee federal elections if they were to be challenged
like in 2020. It also would create a powerful precedent for the Court to shoot
down the Electoral Count Act now pending
in the House by undermining this Constitutional provision:
Article I, Section 4, Clause 1 clearly states: “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 choosing Senators.”
(GOP always seems to skip this part of
the clause).
Key Part: Article I, Section 4, gives state legislatures the task of determining how congressional elections are to be held. The state legislatures determine scheduling of an election, how voters may register, and where they may cast their ballots.
The first federal elections law, which included prohibitions on false registration, bribery, and reporting false election returns was passed after the Civil War to enforce the ban on racial discrimination in voting established by Amendment XV.
Congress extended the
right to vote in federal, state, and local elections when they passed the Civil
Rights Acts of 1957 & 1964, and the Voting Rights Act of 1965. Moore was heard
on December 7 (possibly a second Pearl Harbor attack date) by this 6-3 right
leading USSC.
A ruling in that case
could create and lead chaos for decades and throw future elections into turmoil.
That would be on a state-by-state and worse than 2020’s turmoil based on Trump’s
“Big Lie.”
This theory would have a wide-ranging impact on federal
elections by allowing state legislatures to manipulate voting districts even
more than they are doing so now to ensure that one party and only one party
would always win no matter the actual voting outcome and no court could rule
against that outcome.
Proponents of that theory somehow
believe that the U.S. Constitution bestows unreviewable power
upon state legislatures to determine how congressional elections – and by
extension Presidential elections – are conducted as they say: “The Elections
Clause of the Constitution states that state legislatures shall prescribe the “Times,
Places and Manner of holding Elections for Senators and Representatives,” and that means to them that no court can review any
actions taken by a state legislatures with regards to voting in the state.”
The basis for this case is simply about gerrymandering – the
practice of redrawing Congressional districts to favor one party very few years
to ensure that they stay in power.
Moore case brief
background: The NC Supreme Court struck down a new congressional map
penned by GOP lawmakers, writing in part
that: “It was egregious and intentional partisan gerrymandering in favor of
Republicans and violated the state constitution.”
Imagine this part of a 44-page legal brief on the history of U.S. election law traced all the way back to the founding of the country making riveting television from U.S. Solicitor General Elizabeth Prelogar who wrote this one line in her brief of Moore: “And all of petitioners’ theories would severely disrupt the administration of elections around the Nation, forcing States to hold state and federal elections under different rules and flooding the federal courts — especially this Court — with new election challenges.”
In its original legalese,
it’s not captivating literature. But in plain English, that sentence captures
the threat posed by decades of conservative efforts to neutralize legislative
and judicial protections against racial and other discrimination in elections
to ensure their power in never losing another election.
Moore is the latest, most inventive of
those efforts to date, and definitely the most dangerous.
NC Republican state
lawmakers are arguing that any rules the state legislature makes about
elections aren’t subject to judicial review. Moore was filed after a judge
tossed out a heavily gerrymandered voting map, ruling that it violated the VRA
(1965).
That law is the one Republicans have also been working to
weaken at the national level by packing Black voters into a small number of
districts, thus diluting their overall voting power and that Chief Justice John
Roberts ruled basically saying “discrimination no longer exists in the south.”
That story follows below from MOTHER JONES (2016 issue):
In 2013, when Chief
Justice Roberts issued the most far-reaching Supreme Court decision on voting
rights in the 21st century. Roberts had long argued that the United States has
become colorblind to the point where aggressive federal intervention on behalf
of voters of color is no longer necessary — and Shelby County v. Holder, was the
pinnacle of that belief and of his three decades long crusade.
Roberts honed his views on race and voting as a clerk for Justice William Rehnquist, a man who as a court clerk himself had written a memo endorsing Plessy v. Ferguson, the “separate but equal” doctrine upholding segregated schools.
On the high court, Rehnquist helped redefine opposition
to civil rights laws as a commitment to color blindness, and he used this
theory to undermine the 1965 Voting Rights Act.
Also note for history: The Supreme Court overruled the Plessy decision in Brown v. the Board of Education on May 17, 1954 (e.g., separate but equal NOT lawful in the United States).
Roberts took a similar outlook in the Reagan DOJ where he worked after finishing his Rehnquist clerkship.
Gerry Hebert, now executive director of the Campaign Legal Center, was
also at the DOJ recalls that Roberts “had it in for the VRA,” which Roberts
thought should cover only intentional discrimination, not discriminatory
results or effects of state voting regulations. But proving intentional
discrimination is virtually impossible — and besides, Hebert further said: “Judges don’t want to find that somebody was a racist.
They’d rather focus on the discriminatory impact of a law. I don’t think John
Roberts ever got that.”
Echoing Rehnquist, Roberts has long insisted the United States
has achieved a post racial, colorblind society, a point he emphasized in his
2013 majority opinion in Shelby County v. Holder. That 5-4 decision
eviscerated a critical component of the Voting Rights Act: the requirement that
jurisdictions with a long history of voting discrimination submit any changes
in voting procedures to the DOJ for “preclearance,” to ensure those changes
didn’t have a discriminatory impact. Preclearance blocked more than 700
discriminatory voting changes between 1982 and 2006 alone.
In Shelby, Roberts wrote:
“History did not end in 1965, and such protections were no longer
warranted. Federal oversight of the jurisdictions in question, mostly states in
the Deep South, along with TX, AK, and AZ was outdated and unjustified.”
The speed with which formerly covered states passed laws
making it harder for people of color to register and vote shows that Roberts
was engaged in little more than wishful thinking.
LATE NOTE: This was inserted after this post was
made (May 15, 2013) as noted here from NBC News. I hope you are paying close attention Chief Justice
Roberts to the extract below because the people of SC are paying close
attention as I am and millions of other Americans.
Cite the case mentioned in
the NBC article with this headline:
“Supreme Court to review
South Carolina racial gerrymander claim”
Here is the key extract while
you recall your words above in Shelby wherein you said in part: “… the
United States has achieved a post racial, colorblind society … history did not
end in 1965, and such protections were no longer warranted. Federal oversight
of the jurisdictions in question, mostly states in the Deep South, along with TX,
AK, and AZ was outdated and unjustified.”
Now the SC case before you and please note
the emphasis I highlighted:
Civil rights groups, including the NAACP Legal Defense and Educational Fund, alleged that Republicans targeted Black voters, moving almost 30,000 Black voters from the district into another. (Does that sound like it's colorblind in the deep South to you, sir? Nope and not to me either, and FYI: I am white like you).
Lawyers wrote in court
papers and argued that the new map violates the equal protection clause of the
Constitution's 14th Amendment adding: “That predominant reliance on race is
impermissible even if mapmakers used race as a proxy for politics.”
Note too, Mr. Chief
Justice: The Supreme Court is currently weighing a separate case concerning racial gerrymandering in the
South, this time over Republican-drawn congressional districts in Alabama. The
case could lead to a ruling that further weakens the landmark Voting Rights
Act.
Original Post Continues: In a scathing dissent, the late Justice Ruth Bader Ginsburg laid out evidence that those states have not grown colorblind — by any stretch.
She recounted how federal investigators secretly recorded AL officials referring to African Americans as “Aborigines while plotting to block a ballot initiative they thought would increase African American turnout, as every black, every illiterate would be bused to the polls on HUD financed buses.”
Ginsburg further wrote: “These conversations occurred not in the
1870’s, or even in the 1960’s, they took place in 2010. Preclearance remains
vital to protect minority voting rights and prevent backsliding.”
She proved prescient: After the 5-4 Shelby decision,
states passed a torrent of new voting restrictions that overwhelmingly affected
minorities.
On the day the decision was handed down:
Texas announced that the only two forms of state voter identification it would accept were a driver’s license or a gun license — a measure the DOJ had previously blocked.
Georgia moved some municipal elections in predominantly minority areas from November to May, depressing turnout by nearly 20 percent in one instance.
Alabama implemented a strict voter ID law — and then shut down driver’s license offices in every county where more than 75 percent of voters were African American.
North Carolina was the most blatant. They passed their omnibus voting law shortly after the Shelby decision, the law imposed strict ID requirements, limited
the registration window, and dramatically cut early voting during times
traditionally used by African Americans.
Richard Hasen, a
University of California-Irvine law professor who specializes in election law
said: “The speed with which formerly covered states passed laws making it
harder for people of color to register and vote shows that Roberts was engaged
in little more than wishful thinking. The undoing of the VRA may be one of
Roberts’ most lasting legacies. But there’s a lot of resistance among some
lower-court judges to Roberts’ views of the state of race relations and voting …
and it is reflected in some of their decisions.”
In July, the 4th Circuit Court of Appeals blocked enforcement of NC
news voting law, saying: “The law’s provisions target African-Americans
with almost surgical precision.”
And, in the wake of
Justice Antonin Scalia’s death (in February 2016), Roberts no longer had enough
votes on the Supreme Court to prevent that ruling from taking effect before the
election.
Lower-court decisions
rejecting the Roberts orthodoxy haven’t fallen along ideological lines, either.
The very conservative 5th Circuit Court of Appeals rejected Texas’ harsh voter
ID law. A George W. Bush appointee wrote the majority opinion.
David Gans, a civil rights expert at the liberal Constitutional
Accountability Center said: “The lower courts are coalescing around a broad
view of the VRA’s prohibitions on discriminatory results.”
Will any of these developments prompt Roberts to rethink his
Shelby opinion? Probably not.
In the August 2016 order the high court issued blocked NC’s draconian
voting law, with Roberts writing he personally would have allowed most of the
law to take effect. And despite the lower-court rulings, in November 2016,
14 states will have new voting restrictions that didn’t
exist in 2012.
Professor Hasen said
about that: “Roberts probably still believes he is right, because he likely
sees what is going on as simple partisan politics. But for many of us, we see a
world in which it is once again getting harder, not easier, for people — especially
people of color — to cast a ballot which will count.”
That’s where U.S. Solicitor
General Elizabeth Prelogar’s sentence comes in: She dismantles the argument
that the constitution gives the sole power over elections to state legislatures
with no ability by the courts to review their decisions.
She laid out exactly what Republicans are trying to do: “Subject
every election in the country into chaos, thus further undermining trust in the
system overall.”
Under the current thinking in the Republican party, the only thing better than being able to control elections at the state level without fear of judicial intervention is the ability to tie them up — to severely disrupt the administration of elections around the nation.
It’s a page straight
out of the Trump campaign strategy in 2020 wherein he took to the courtrooms some
63 court challenges and flooded the zone with lawsuit after lawsuit but he lost
62 of them – none of which had any merit at all, but all of which helped plant
the seeds of distrust that peaked with the hooligans who overran the Capitol on January 6 all just to keep Trump in office by force reversing the 2020
election outcome by a chaotic insurrection, but it failed thank goodness.
Now if this Supreme Court agrees with Moore in NC it would give any Republican legislative majority in a swing state the power to do whatever it chooses when it comes to elections that would ensure they never lose again like in 2020 with no checks on its power, including from state courts, the governor, or any other election officials.
If
this had been in effect in 2020 in AZ, MI, and PA it's entirely possible that
right-wing state legislators could have done exactly that.
That is what folks like Justice
Thomas’ wife, Ginni, and dozens of Trump sycophants led by Rudy Giuliani & Sidney Powell, et al all wanted them to do and that is: “To refuse to count certain EC votes, and even appoint their own slate
of fake electors in defiance of the voters” (like in 7 states led by GA
in their current case).
If the GOP could get enough
gerrymandered districts in place that would guarantee that they would never
ever lose again and that no court anywhere could intervene if USSC upholds
Harper v. Moore.
Republican lawmakers
retorted and have brought the issue to the U.S. Supreme Court, arguing: “The
NC supreme court doesn’t have the authority to strike down the map under the
independent state legislature theory which is the idea that: “…only the state
legislature can regulate federal elections, not state courts.”
If the high court agrees,
it could give state legislatures much broader power over elections and allow
federal elections to be conducted without oversight from state courts.
They would be giving state
legislatures supremacy as to their role in federal elections and that goes a
long and troubling way toward allowing Republican-controlled state legislatures
in key swing states to implement the Trump “Big Lie – the Sequel.”
It also would create a
powerful precedent for the Court to shoot down the Electoral Count Act now pending in the House by undermining this Constitutional
provision that clearly states in the
last sentence everyone fails to mention:
Article I, Section 4, Clause 1 clearly states: “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 choosing Senators.”
Key Part: Article I, Section 4, gives state legislatures
the task of determining how congressional elections are to be held. The state
legislatures determine scheduling of an election, how voters may register, and
where they may cast their ballots.
The first federal elections law, which included prohibitions on false registration, bribery, and reporting false election returns.
It was passed after the Civil War to enforce the ban on racial discrimination in voting established by Amendment XV. Congress extended the right to vote in federal, state, and local elections when they passed the Civil Rights Acts of 1957 & 1964, and the Voting Rights Act of 1965.
Extract from Alternet (note: the page is no longer posted): In February 2022, the NC Supreme Court blocked the state's
Republican-controlled general assembly from instituting a newly-drawn
congressional district map, holding that the map violated the state
constitutional ban on non-partisan gerrymandering.
Then State Rep. Tim Moore (R-111th District), also the Speaker of the House, appealed the decision to the U.S. Supreme Court, advancing a theory that has circulated for years in right-wing circles.
It argues that the U.S. Constitution gives state
legislatures alone the power to regulate federal elections in their states.
True, the U.S. Constitution does grant state legislatures the authority to
prescribe the “times, places, and manner of holding elections.”
But (and a very big but), that
same Constitutional element “does not give state legislatures total power over
our democracy and the entire electoral process” which Moore plaintiffs advocate.
Noteworthy: The Supreme Court has repeatedly rejected this so-called “Independent State Legislature Theory” numerous times throughout the last century. Will they again this time?
But, with this Court holding a staunch right-wing majority (6-3) – and three nominated by Trump – the question remains “will they rule about on just about anything that suits the far-right's agenda like they did in overturning Roe v. Wade?” Or will they stick with precedence as history shows and most of them pledged when nominated
More on this is here from
NEWSWEEK. Most troubling beyond it providing a whole
new, and all too real, path to overturning a legitimate presidential election —
it is that the new doctrine if set as a new U.S. Supreme Court precedent would
be more sweeping than the Court's recent Roe v. Wade and gun rights cases.
As completely out of step with the views of the majority of
Americans as those two recent decisions were, both the Biden administration and
various states are putting in place ways to sidestep the severity of those
decisions by maintaining access to abortions and putting in place more restrictive
gun laws.
If the independent state
legislature doctrine were to be established that would give GOP-run states unfettered
discretion to determine the outcome of elections in their state, including
unreviewable power over the appointment of electors, a very small number of
swing states can overturn democracy for every state — the entire country — regardless
of how true to our democratic values the state legislatures in other states
prove to be thus voiding their citizens’ votes as well.
Moreover, critical swing states like MI, WI, and PA have had Democratic governors that are today a check on rabid “Big Lie” state legislatures.
The independent state legislature
doctrine would remove that political safeguard from the federal election
process. In other words, the Moore case poses an enormous existential
threat to our democracy.
There is a partial but not an easy answer.
Gerrymandering by Republican legislatures are so entrenched
that there is no hope of flipping swing states. Thus, one or both houses of
these state legislatures could not end up in Democratic control. However, the
reality is that it is conceivable that some of the most problematic state
legislatures when it comes to the “Big Lie” can indeed be flipped.
But (yet another big
but): Republicans have excelled at putting enormous effort at
developing political strength at the state legislature level. So successful in
fact, today Republicans have control of both houses of the state legislature in
30 states. It is more important than ever that all voters — whether Democrats,
Republicans, or Independents who care about our Democratic values — fight back
here in light of what the Supreme Court might do, and enable a change of
control of key swing state legislatures.
This case if it swings for
NC could concentrate an unprecedented amount of power in gerrymandered state
legislatures as mentioned above, and that should alarm anyone who cares about our
democracy, our right to vote, and to be assured that our vote will count.
The NC court ruling determined is was because: “The realignment subordinated traditional neutral redistricting criteria in favor of an extreme advantage for Republicans.”
What is scary is that it could get worse nationally if this USSC rules the same
way. That is, if the current 6-3 conservative
majority gives credence to this GOP pushed Theory into law, which BTW is fewer
than 25 years old and is relegated to the fringes of academia with this its
goal:
· Make partisan gerrymandering more extreme.
· Turn federal elections on its head or disappear
totally.
· Allow states to reject election results that they
don't like by inserting new their new numbers to reverse or erase the real
outcome numbers with their votes to reverse the actual election outcome for
their one-sided new one slate.
My 2 Cents: The outcome of this case now more so in view of current GOP in control of the House and USSC and their tactics to day clearly shows and simply means that this Trump now “owned and operated GOP” along with this ultra-conservative USSC, and we have seen and endured post the 2020 election show the danger our entire system of government is on thin ice.
Our current free, fair, safe, and secure voting system is in deep trouble and by inserting a lopsided state legislative set of rules addressed above in this NC case says in essence to me at least that Trump wants to rule like Xi in China; Putin in Russia; Kim Jong-un in North Korea; or some King, or Prince, or Mullah in Saudi Arabia, Iran, or Afghanistan.
That is for him to regain office and then stay in and hold unlimited power no matter what the voters wanted or stand for.
In simple language the above is designed to ensure that the GOP never loses any election again regardless of how or whom you voted for or who won on Election Day – it could be voided and reversed like Trump tried to do on January 6.
This GOP plan would replace any losing GOP candidate with the winning candidate that you voted for. “That would ensure that your vote does not and will not count not matter whom you voted for. It would be as if you never voted at all in the first place.”
Sounds harsh, I know – but that is the reality of what this case about. Short and direct, this is the most-serious voting rights and election law case ever and based that is based on facts and evidence posted above. Hyperbole some will you say.
Actually, it is not. Simply watch and see what the final rightwing leaning Supreme Court ruling will be, and then get back to me to see that the 2024 election cycle may be the end of our democratic nation as we all mostly have all grown to love and cherish our entire lives – and watch it vanish in a flash.
Thanks
for stopping by.
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