One thing I’m curious about, and can’t really determine because the oral arguments themselves are pretty dense: at any point, did the respondents or the justices opposed to Independent Legislature Theory bring up the big bad worst case scenario people keep talking about: a legislature just throwing out votes for no real reason for partisan purpose? If so, what did the theory supporters say in response? What do they say in response in general?
I ask because the article says that Alito dismissed the idea that it threatened democracy, and I was wondering how exactly he and those who think like him do that, assuming it’s not just “yeah, that could happen, but the Constitution says so, so our hands are tied” or “it’ll strengthen democracy by keeping it in Republican hands away from cheating Democrats.”
Probably the same thing they said in response to criticism about their rulings overturning campaign finance laws and extending the influence of money in politics and in winning elections – by denying that it’s a problem. It’s not hard to formulate post-hoc rationalizations when it’s a win for Republicans, like Roberts’ famous declaration that money is not at all a corrupting influence in politics unless there’s an explicit quid pro quo – i.e.- direct bribery. But the 1% having a grossly disproportionate influence on election outcomes and policy? No problem!
I did some keyword searches and haven’t found anything specifically on that.
Closest I could find was on pages 49-50 of the transcript, where Kagan says
Thompson’s (lawyer for the NC legislature) reply (on pg 51-52) was:
So I guess logically if the federal constitution is a check on state legislatures running elections, then the federal courts could intervene in the case of a legislative coup that was unreviewable by the state courts.
Anyone reading along would realize that this would still open up pandora’s box for a variety of reasons, but as far as I can tell they didn’t dig further into that.
IOW, like I said, “deny that it’s a problem”. And for Republicans and their partisan justices, it isn’t. And their next pronouncement, when all federal elections are “won” by Republicans, is “The people have spoken. Ain’t democracy wonderful?” Right-wing types, whether in legislatures or on the courts, have only the most tenuous relationship with reality. If anyone thinks I’m just being hyperbolic, read (per the link above) about some of their mind-boggling rationalizations for overturning campaign finance laws and decades of precedent, or steamrolling right over stare decisis in throwing out Roe v Wade.
That said, I’m getting the sense of some hope that even among the extremists, not enough have bought into the “independent legislature theory” to actually rule in support of it, but even a weakened version would be a serious setback to bedrock democratic principles.
Wait, I thought one big point was that federal courts were already barred from doing so by a previous case? I thought that was the entire point of this theory: to argue that the legislature could do anything they wanted with no check or balance anywhere whatsoever besides being voted out?
If they’re not actually arguing that directly, then I guess that explains the answer to my question as well.
In the case of a presidential election might the Dem minority within the legislature submit an alternate group of electors who are pledged to support the popular vote? The state only controls state actions. The feds still control what they will accept.
Not sure if this is what you’re saying but a hypothetical was brought up in the hearings of some random group saying they are the state legislature and making their own election rules.
The popular vote will still show the R candidate ahead, once the legislature (with no court overview, of course), removes those pesky votes from larger cities that are probably full of fraud (with no proof, but “everyone knows” so that’s good enough)
Exactly, that would provide a case for the Dems to submit an alternate group of electors. It would be based on a different count than the Republicans. The VP did not accept any of the objections or alternates for Trump because they were bogus. But, if legitimate the VP could choose alternate electors.
I believe it was Rucho v. Common Cause and Lamone v. Benisek where SCOTUS held that partisan gerrymandering is a political question and outside the jurisdiction of the federal courts. However, that case assumes that the state constitution and state courts can deal with partisan gerrymandering by the state legislature. I would think that assumption would be on shaky grounds if this case is decided in favour of the state legislature theory.
Yep, that sounds like what I’m thinking of. The reason I ask is that, as I said above, many discussions make it seem that the “wrong” ruling here would cause legislative action on federal elections to be completely unreviewable by any level of government whatsoever, while other sources seem to indicate that (for example) the ISLT proponents think the federal Constitution will protect voters, but how can it, if there’s already a ruling that they aren’t allowed to? This is what I’m confused by.