Tag Archives: Independent State Legislature

The Independent State Legislature Theory, Election Law, and the Trump Crimes

By tmess2 | Published August 13, 2023

Recently, a federal grand jury in the District of Columbia returned an indictment charging the Orange Menance with crimes related to his attempted coup after the 2020 election.  It is expected that within a week or two a state grand jury in Fulton County, Georgia will add state charges related to the efforts of dictator-wannabe Donald Trump to convince Georgia election authorities to alter the results of the election in that state.

Much of the crimes committed by Donald Trump and his band of incompetent coconspirators were based on a flawed version of the independent state legislature theory and a misunderstanding of election mechanics.

First, the independent state legislature theory.  The independent state legislature theory is based on two clauses in the U.S. Constitution.  One of the clauses is found in Article I and applies to the election of members of Congress.  The other clauses is found in Article II and deals with the selection of presidential electors. Continue Reading...

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The Mostly Dead Independent State Legislature Theory

By tmess2 | Published July 1, 2023

Two clauses of the Constitution — one for Congressional elections and one for the selection of presidential electors — give the primary responsibility for adopting the rules governing elections to state legislatures.  The problem with these two clauses is that the U.S. Constitution does not create state legislatures.  Instead, state legislatures are created by the states themselves.  Not too surprisingly, different states structure their legislatures differently — one state (Nebraska) only has a unicameral legislature, many states allow the voters to initiate and approve legislation, each state has a different number of legislative districts, and some states have unique rules on what laws can be vetoed by governors and how many votes it takes to override a veto.

Traditionally, the Supreme Court has resolved this problem by holding that the election clauses simply refer to the legislative power of the state.  Each state is free to create its own rules about the composition of the state legislature, how many votes it takes to pass legislation, and which body gets to make certain election-related decisions (including delegating the redistricting power to independent commissions).    There has been a theory floating for years on the conservative side that these clauses establish a state legislative power that is “independent” of state law and state constitutions.  While this theory keeps reemerging, this theory has repeatedly failed to be adopted by the U.S. Supreme Court.

In the last round of redistricting, several state court (including North Carolina, Ohio, and New York) invalidated redistricing maps based on state constitutional provisions related to elections.  Initially, the North Carolina courts invalidated that’s states congressional redistricting plans.   North Carolina Republicans asked for the Supreme Court to review that decision based on the independent state legislature theory arguing that the U.S. Constitution barred state courts from interfering with the state legislature’s power under the U.S. Constitution to set election laws related to federal elections even if those laws violated the state constitution. Continue Reading...

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Supreme Court — October 2022 Term — First Look at the Remaining Cases

By tmess2 | Published June 4, 2023

It’s the first full week of June.  And that means that the clock is rapidly ticking to the end of this year’s Supreme Court term.  By custom, the Supreme Court tries to issue all of the opinions from the term before the Fourth of July holiday.  (It then spends the last three months of the term handling emergency motions and preparing for the next term.)

As we look ahead, some basics about how the Supreme Court operates.  During the argument portion of the term, the Supreme Court holds seven “monthly” — October through April — argument sessions (not quite as sessions often occur partly in two months but that is the convention used to describe the sessions).  In each session, the court hears arguments on Monday, Tuesday, and Wednesday (with some days skipped for federal and religious holidays).  Then on Friday, they discuss that week’s cases (along with applications for review) and take a tentative vote on each case.  After the vote, the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice in the majority if the Chief Justice is the minority) chooses which justice gets to write the first draft of the opinion.  Typically, the justices assigning the opinions try to assure a balanced assignment of cases within the session (i.e., if there were nine cases, each justice would get one opinion to write) and across the term as a whole.   When we reach this point of the term, we have enough opinions from individual argument sessions to try to guess who will have the opinion.

Starting with October, we are down to one outstanding case — the Alabama voting rights case.    The bad news is that there are only two justices without an opinion from October — the Chief Justice and Justice Thomas.  It is slightly more likely that the Chief Justice has the case   He tends to like writing election cases.  While both are very likely to write an opinion that would undermine the Voting Rights Act, Justice Thomas is more likely to want to write an opinion that reverses the decision entirely (with no further proceedings) and the Chief Justice is more likely to send it back to the trial court for further consideration (in light of a standard which allows Alabama to dilute minority votes) so there is a slim chance that the Chief Justice ended up on the wrong side of a 5-4 split.  But my hunch is a 6-3 opinion that ignores the plain language of the Voting Rights Act. Continue Reading...

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Supreme Court Mid-Term Update

By tmess2 | Published January 7, 2023

As a New Year starts, the Supreme Court returns on Monday for the first of four argument sessions.  This term is already shaping up as a weird term.  By the fourth argument session of the term, you typically have at least one opinion from an argued case and a handful of opinions granting summary reversals in cases in which the lower courts clearly erred.  While the bigger “political” cases normally take longer, the Supreme Court also takes “routine” cases that simply involve conflicting interpretations of statutes and regulations by different circuits.  It is not unusual for these cases to be resolved by unanimous opinions.  Maybe it’s just that none of the October cases (with the exception of the Andy Warhol case) fits that criteria, but the lack of an opinion is unusual.

At this point, the first half of the term saw some rather significant cases that will undoubtedly get attention when they are decided — the Voting Rights Act dispute regarding Alabama’s new district lines and the failure to create a second majority minority district (which will also impact the lines in Florida, Georgia, and Lousiana); the challenges to the Affirmative Action programs at Harvard and the University of North Carolina; the challenge to the Indian Child Welfare Act; challenges to the ability of Immigration and Customs Enforcement to set priorities related to deportation; whether state courts can use state constitutions to regulate congressional redistricting; and whether there is a free speech exception to civil rights laws (specifically those barring discrimination based on sexual orientation).

The January session should be relatively quiet.  There are two labor cases on the docket — one involving the weird hybrid status of certain national guard employees and whether that hybrid statute makes them subject to certain protections for federal workers and the other whether an employer can maintain a state tort against a labor union for timing the start of the strike to damage the property of the employer. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 2)

By tmess2 | Published September 28, 2022

The Supreme Court begins its annual term this upcoming Monday, October 3.  Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions).  In Part 1, we covered the cases that have been scheduled for argument in October and November.  In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday).  Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).

Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting.  One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).

Moore vs. Harper may be the biggest election law case of the term.  The Constitution grants initial power over federal elections to state legislatures.  The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments).  This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions.  In recent years, conservatives have come up with the “independent state legislature” theory.  Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules.  In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws.  This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it. Continue Reading...

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Supreme Court Update

By tmess2 | Published June 20, 2022

The last week was both busy and quiet on the Supreme Court front.  The Supreme Court handed down eleven decisions reducing the number of pending cases to eighteen with two weeks to go.  Only two of the cases were medium big, and the really big cases will be decided in the last two weeks.  With the Juneteenth holiday, the Supreme Court will be releasing opinions tomorrow (Tuesday) and Thursday.  For the last week of June, Monday will be an opinion day.  Depending on how many opinions are left after June 27, there will probably be additional opinions on June 29 and, maybe, June 30.  Expect Dodds and New York State Rifle to come the week of June 27.

This week, the two big decisions were in American Hospital Association v. Becerra and Arizona v. City and County of San Francisco.  Both of these are bigger for what they did not say than for what they actually held.

American Hospital Association involves the rules for hospital reimbursements for Medicare.  For years, conservatives have been challenging a judge-made rule (Chevron deference) which dictates that courts should uphold reasonable rules implemented by administrative agencies based on a reasonable interpretation of statutes.  So far, the U.S. Supreme Court has not officially overruled Chevron.  Instead, they are whittling it away through decisions like American Hospital Association.  The courts are doing this by narrowing the field of what is a reasonable interpretation of statutes. Continue Reading...

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