Would SCOTUS scrap HR1 if enacted into law?
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  Would SCOTUS scrap HR1 if enacted into law?
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Author Topic: Would SCOTUS scrap HR1 if enacted into law?  (Read 2482 times)
Sir Mohamed
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« on: March 29, 2021, 09:07:57 AM »

If Dems were able to pass HR1 during this congress, would subsequent enthusiasm from liberals and leftists be premature? There is literally a 100% chance GOP state AGs or right-wing organizations would immediately challenge the law before federal courts. That would inevitably end up before SCOTUS. Is this just my impression, or could SCOTUS in its current composition (give or take Biden replacing Breyer) actually scrap major parts of the law or just rule it unconstitutional as a whole? Their argument would be that election law is under the states' authority and the federal govt has no business in imposing such regulations.
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I知 not Stu
ERM64man
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« Reply #1 on: March 29, 2021, 11:03:00 AM »
« Edited: March 29, 2021, 11:06:22 AM by ERM64man »

Yes, SCOTUS would completely scrap HR1. This SCOTUS also thinks this map of Alabama I made is legal.

AL-01: Jerry Carl (safe R)
AL-02: Barry Moore (safe R)
AL-03: Robert Aderholt (safe R)
AL-04: Gary Palmer (safe R)
AL-05: Mike Rogers (safe R)
AL-06: OPEN (safe R)
AL-07: Mo Brooks (safe R)

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Donerail
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« Reply #2 on: March 29, 2021, 12:15:50 PM »

Their argument would be that election law is under the states' authority and the federal govt has no business in imposing such regulations.
Congress actually has fairly broad authority to regulate elections. Article I, Section 4 gives Congress the power to, "at any time," "make or alter" regulations governing the "time, place and manner" of federal elections. There is a long, though sparse, historical record of Congress using this power in ways far more intrusive than H.R. 1. Obviously this wouldn't stop the current Court from picking out a handful of provisions and declaring them beyond the power of Congress, but it would be very difficult for them to scrap the whole thing.
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Nathan
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« Reply #3 on: March 29, 2021, 01:13:35 PM »

Their argument would be that election law is under the states' authority and the federal govt has no business in imposing such regulations.
Congress actually has fairly broad authority to regulate elections. Article I, Section 4 gives Congress the power to, "at any time," "make or alter" regulations governing the "time, place and manner" of federal elections. There is a long, though sparse, historical record of Congress using this power in ways far more intrusive than H.R. 1. Obviously this wouldn't stop the current Court from picking out a handful of provisions and declaring them beyond the power of Congress, but it would be very difficult for them to scrap the whole thing.

The fact that HR1 purports to regulate state legislative elections as well as Congressional ones strikes me as unlikely to pass muster.
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I知 not Stu
ERM64man
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« Reply #4 on: March 29, 2021, 04:00:16 PM »

Forget HR1, the current SCOTUS has five justices who believe Section 2 of the VRA can't even be used to challenge racial gerrymanders, although such a case hasn't made it to SCOTUS yet.
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Donerail
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« Reply #5 on: March 29, 2021, 09:30:50 PM »
« Edited: March 29, 2021, 09:37:24 PM by Donerail »

Congress actually has fairly broad authority to regulate elections. Article I, Section 4 gives Congress the power to, "at any time," "make or alter" regulations governing the "time, place and manner" of federal elections. There is a long, though sparse, historical record of Congress using this power in ways far more intrusive than H.R. 1. Obviously this wouldn't stop the current Court from picking out a handful of provisions and declaring them beyond the power of Congress, but it would be very difficult for them to scrap the whole thing.

The fact that HR1 purports to regulate state legislative elections as well as Congressional ones strikes me as unlikely to pass muster.
I'd assume they justify that under a 14th/15th Amendment logic but this is... not a Court inclined to view those amendments broadly. There is also an anti-commandeering argument against the law requiring the states to set up these independent redistricting commissions; the argument's been made that this doesn't run afoul of the principle, but it's logic the court could use to strike down that provision.
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brucejoel99
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« Reply #6 on: March 29, 2021, 09:36:52 PM »

Their argument would be that election law is under the states' authority and the federal govt has no business in imposing such regulations.
Congress actually has fairly broad authority to regulate elections. Article I, Section 4 gives Congress the power to, "at any time," "make or alter" regulations governing the "time, place and manner" of federal elections. There is a long, though sparse, historical record of Congress using this power in ways far more intrusive than H.R. 1. Obviously this wouldn't stop the current Court from picking out a handful of provisions and declaring them beyond the power of Congress, but it would be very difficult for them to scrap the whole thing.

The fact that HR1 purports to regulate state legislative elections as well as Congressional ones strikes me as unlikely to pass muster.

What provision thereof does this? I haven't seen &/or heard of anything like that in the bill myself.
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« Reply #7 on: March 29, 2021, 09:58:49 PM »

The redistricting provisions probably , the other parts id say probably not
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Skill and Chance
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« Reply #8 on: March 31, 2021, 10:18:55 AM »

The redistricting provisions probably , the other parts id say probably not

For state legislative seats and local government districts, I agree, but why would regulating US House districts be a constitutional problem?  Those are federal elections.  For example, there is an existing federal law requiring that states draw single member districts.  Is that constitutional?
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brucejoel99
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« Reply #9 on: March 31, 2021, 11:36:45 AM »

To clarify for everybody, there are no provisions of H.R. 1 (at least, as far as I can tell) that seek to implement limitations on anything - incl. partisan gerrymandering - at the state legislative &/or local level. Doing so would be unconstitutional, yes, which is why the bill's provisions only require states to use independent commissions for congressional district lines.
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Donerail
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« Reply #10 on: March 31, 2021, 11:45:58 AM »

The redistricting provisions probably , the other parts id say probably not

For state legislative seats and local government districts, I agree, but why would regulating US House districts be a constitutional problem?  Those are federal elections.  For example, there is an existing federal law requiring that states draw single member districts.  Is that constitutional?
HR 1 still requires states to establish the independent redistricting commissions, which is iffy on anti-commandeering grounds.
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brucejoel99
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« Reply #11 on: March 31, 2021, 12:05:55 PM »

The redistricting provisions probably , the other parts id say probably not

For state legislative seats and local government districts, I agree, but why would regulating US House districts be a constitutional problem?  Those are federal elections.  For example, there is an existing federal law requiring that states draw single member districts.  Is that constitutional?
HR 1 still requires states to establish the independent redistricting commissions, which is iffy on anti-commandeering grounds.

I feel like that'd be a bit of a stretch (though maybe not for this Court), wouldn't all federal election reform that ever required anything of the states (e.g., UOCAVA) be unconstitutional were that logic to be extended in such a fashion?
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I知 not Stu
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« Reply #12 on: March 31, 2021, 01:49:28 PM »

The redistricting provisions probably , the other parts id say probably not

For state legislative seats and local government districts, I agree, but why would regulating US House districts be a constitutional problem?  Those are federal elections.  For example, there is an existing federal law requiring that states draw single member districts.  Is that constitutional?
HR 1 still requires states to establish the independent redistricting commissions, which is iffy on anti-commandeering grounds.

I feel like that'd be a bit of a stretch (though maybe not for this Court), wouldn't all federal election reform that ever required anything of the states (e.g., UOCAVA) be unconstitutional were that logic to be extended in such a fashion?
Yes, they would all be unconstitutional under that logic. Under that logic, Alabama can have a 7R-0D House map.
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Nathan
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« Reply #13 on: March 31, 2021, 01:49:47 PM »

To clarify for everybody, there are no provisions of H.R. 1 (at least, as far as I can tell) that seek to implement limitations on anything - incl. partisan gerrymandering - at the state legislative &/or local level. Doing so would be unconstitutional, yes, which is why the bill's provisions only require states to use independent commissions for congressional district lines.

Okay, I guess I was just mistaken or misinformed about that. Thanks for the correction.
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Donerail
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« Reply #14 on: March 31, 2021, 01:54:33 PM »
« Edited: March 31, 2021, 07:35:15 PM by Donerail »

The redistricting provisions probably , the other parts id say probably not

For state legislative seats and local government districts, I agree, but why would regulating US House districts be a constitutional problem?  Those are federal elections.  For example, there is an existing federal law requiring that states draw single member districts.  Is that constitutional?
HR 1 still requires states to establish the independent redistricting commissions, which is iffy on anti-commandeering grounds.

I feel like that'd be a bit of a stretch (though maybe not for this Court), wouldn't all federal election reform that ever required anything of the states (e.g., UOCAVA) be unconstitutional were that logic to be extended in such a fashion?
Right, the argument for the government (which has been generally accepted in the past) is that the Elections Clause lets Congress do things that wouldn't otherwise be permissible under the Commerce Clause.
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Skill and Chance
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« Reply #15 on: March 31, 2021, 06:53:27 PM »

To clarify for everybody, there are no provisions of H.R. 1 (at least, as far as I can tell) that seek to implement limitations on anything - incl. partisan gerrymandering - at the state legislative &/or local level. Doing so would be unconstitutional, yes, which is why the bill's provisions only require states to use independent commissions for congressional district lines.

Okay, I guess I was just mistaken or misinformed about that. Thanks for the correction.

I was also confused.  Thanks!
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SnowLabrador
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« Reply #16 on: March 31, 2021, 06:58:50 PM »

Yes, 100%. We need to expand the court as well. F*** Ruth Bader Ginsburg for not retiring under Obama.
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politicallefty
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« Reply #17 on: April 02, 2021, 04:01:28 AM »

If you look at the text of the bill, the authors have included multiple severability clauses. I think they have one for literally each subject. I think Democrats are being a lot more careful with major legislation nowadays considering what nearly happened to the ACA in 2012 (specifically in terms of severability and the fact that the dissent wanted to strike down the entire law).

I do wish the legislation had fallback options that became operative if others were struck down. I especially look at the redistricting provisions for that. That is the most important part of this legislation. I think the fallback option should be either a federal redistricting commission (with strict guidelines as to who would be qualified) and/or very strict criteria as to what is allowed and disallowed. Part of the problem with the VRA (particularly Section 5) is that it only applied to certain states. Section 5 wasn't struck down though. It was the coverage formula under Section 4 that was held to be unconstitutional. I would prefer an attempt to put all 50 states under Section 5 preclearance.

To clarify for everybody, there are no provisions of H.R. 1 (at least, as far as I can tell) that seek to implement limitations on anything - incl. partisan gerrymandering - at the state legislative &/or local level. Doing so would be unconstitutional, yes, which is why the bill's provisions only require states to use independent commissions for congressional district lines.

I'm fairly sure the VRA's redistricting provisions also apply to state and local government. However, that would not seem to be a power of the Elections Clause, but rather a power under the Fifteenth Amendment's enforcement clause. I think Congress probably has some limited power to set some standards even for state and local government.
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Skill and Chance
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« Reply #18 on: April 02, 2021, 11:48:05 AM »

If you look at the text of the bill, the authors have included multiple severability clauses. I think they have one for literally each subject. I think Democrats are being a lot more careful with major legislation nowadays considering what nearly happened to the ACA in 2012 (specifically in terms of severability and the fact that the dissent wanted to strike down the entire law).

I do wish the legislation had fallback options that became operative if others were struck down. I especially look at the redistricting provisions for that. That is the most important part of this legislation. I think the fallback option should be either a federal redistricting commission (with strict guidelines as to who would be qualified) and/or very strict criteria as to what is allowed and disallowed. Part of the problem with the VRA (particularly Section 5) is that it only applied to certain states. Section 5 wasn't struck down though. It was the coverage formula under Section 4 that was held to be unconstitutional. I would prefer an attempt to put all 50 states under Section 5 preclearance.

To clarify for everybody, there are no provisions of H.R. 1 (at least, as far as I can tell) that seek to implement limitations on anything - incl. partisan gerrymandering - at the state legislative &/or local level. Doing so would be unconstitutional, yes, which is why the bill's provisions only require states to use independent commissions for congressional district lines.

I'm fairly sure the VRA's redistricting provisions also apply to state and local government. However, that would not seem to be a power of the Elections Clause, but rather a power under the Fifteenth Amendment's enforcement clause. I think Congress probably has some limited power to set some standards even for state and local government.

Yes, but the authority over state and local elections is to prevent explicit racism in voting (or sexism/ageism presumably as the 19th and 26th amendments use the same language as the 15th) and the current SCOTUS majority will construe this narrowly.  There is no authority to directly regulate partisan balance, district shapes, etc. at the state/local level.
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Amenhotep Bakari-Sellers
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« Reply #19 on: April 02, 2021, 02:34:19 PM »

Yes they will strike down every Progressive Legislation that comes out of Congress, Voter ID and gerrymandering and Citizens United were all affirmed by Kennedy.

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AtorBoltox
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« Reply #20 on: April 02, 2021, 09:39:02 PM »

They'd better not
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lfromnj
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« Reply #21 on: April 02, 2021, 10:26:42 PM »

Ok so congress can't regulate local/state elections that much but they can regulate the house/senatorial elections. However what about presidential?
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brucejoel99
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« Reply #22 on: April 02, 2021, 10:49:43 PM »
« Edited: May 09, 2021, 03:35:40 PM by brucejoel99 »

Ok so congress can't regulate local/state elections that much but they can regulate the house/senatorial elections. However what about presidential?

The Constitution only explicitly allows Congress to determine the "time" at which presidential electors are chosen (as opposed to their authority over the "time, place and manner" of congressional elections), but the relevant case law on this matter - Burroughs v. United States - basically granted Congress broad regulatory authority over political campaign committees & the like that seek to participate in & influence federal elections, including presidential elections. As far as I can tell, the only thing that H.R. 1 really purports to do regarding presidential elections is requiring that presidential candidates & their running-mates disclose the previous 10 years of their tax returns, which would appear to be constitutional under current precedent.
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NYDem
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« Reply #23 on: April 05, 2021, 02:39:11 AM »

As far as I can tell, the only thing that H.R. 1 really purports to do regarding presidential elections is requiring that presidential candidates & their running-mates to disclose the previous 10 years of their tax returns, which would appear to be constitutional under current precedent.

I don't see how establishing an additional qualification for the Presidency by legislation could possibly be Constitutional. I'd imagine that gets struck down if it makes it into actual legislation.
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brucejoel99
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« Reply #24 on: April 05, 2021, 02:33:03 PM »

As far as I can tell, the only thing that H.R. 1 really purports to do regarding presidential elections is requiring that presidential candidates & their running-mates to disclose the previous 10 years of their tax returns, which would appear to be constitutional under current precedent.

I don't see how establishing an additional qualification for the Presidency by legislation could possibly be Constitutional. I'd imagine that gets struck down if it makes it into actual legislation.

The same way that requiring presidential candidates to file with the FEC didn't unconstitutionally serve to legislatively establish an additional qualification for the presidency in that the provision in question doesn't establish an absolute bar to candidates who otherwise meet the constitutional eligibility requirements (though, of course, this presumes that a majority of the Court is actually willing to rely upon its own precedent in this instance).
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