After RBG’s death, Moore v Harper might kill American Democracy forever

[I’m not Stu]

Thinking US democracy will survive Moore v. Harper is like thinking the obscure Ting Tings song "Guggenheim" is a well-known song.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Thinking US democracy will survive Moore v. Harper is like thinking the obscure Ting Tings song "Guggenheim" is a well-known song.

No more broken record on this, ERM64man. We already know how you feel about this case.

[lfromnj]

Did the plaintiffs bring anything related to the other NC election case regarding the strike down of Voter Id?
https://twitter.com/EdWhelanEPPC/status/1600530353306877952?cxt=HHwWgICykYv4nLYs...

[I spent the winter writing songs about getting better]

This is probably the most encouraging sign:

https://twitter.com/jedshug/status/1600512894432673794?t=euq9RuIUZMWrLY5goqFdUQ&...

And a follow-up indicates one of ACB's questions seems to reject the ISL altogether, at least the "hard" version. She might (and probably will) rule for the NC Legislature on other grounds though.

[MarkD]

Partisan gerrymandering is nothing more than an attempt to take advantage of the predictability of the voters. There is absolutely nothing undemocratic about it whatsoever. ERM64man, you are never, ever going to get me to agree with you that whenever partisan gerrymandering occurs (such as in Illinois, where I live now), democracy dies. The Illinois map is clearly gerrymandered now; about 56% of the voters of Illinois voted for Democrats to the US House. But Democrats won 14 out of 17 seats. The ratio of 14/17 is the most partisanly lopsided the state has probably ever had. But am I going to whine that this map is undemocratic? Not on your life.

[Skill and Chance]

Partisan gerrymandering is nothing more than an attempt to take advantage of the predictability of the voters. There is absolutely nothing undemocratic about it whatsoever. ERM64man, you are never, ever going to get me to agree with you that whenever partisan gerrymandering occurs (such as in Illinois, where I live now), democracy dies. The Illinois map is clearly gerrymandered now; about 56% of the voters of Illinois voted for Democrats to the US House. But Democrats won 14 out of 17 seats. The ratio of 14/17 is the most partisanly lopsided the state has probably ever had. But am I going to whine that this map is undemocratic? Not on your life.

IMO I don't think you can take the one person, one vote line of cases seriously without arriving at some constitutional limits on gerrymandering.

[SteveRogers]

Partisan gerrymandering is nothing more than an attempt to take advantage of the predictability of the voters. There is absolutely nothing undemocratic about it whatsoever. ERM64man, you are never, ever going to get me to agree with you that whenever partisan gerrymandering occurs (such as in Illinois, where I live now), democracy dies. The Illinois map is clearly gerrymandered now; about 56% of the voters of Illinois voted for Democrats to the US House. But Democrats won 14 out of 17 seats. The ratio of 14/17 is the most partisanly lopsided the state has probably ever had. But am I going to whine that this map is undemocratic? Not on your life.

IMO I don't think you can take the one person, one vote line of cases seriously without arriving at some constitutional limits on gerrymandering.

I’m pretty sure he doesn’t take the one person, one vote cases seriously and believes southern states should be allowed to go back to 20:1 disparities in state legislative  districts.

[Skill and Chance]

Partisan gerrymandering is nothing more than an attempt to take advantage of the predictability of the voters. There is absolutely nothing undemocratic about it whatsoever. ERM64man, you are never, ever going to get me to agree with you that whenever partisan gerrymandering occurs (such as in Illinois, where I live now), democracy dies. The Illinois map is clearly gerrymandered now; about 56% of the voters of Illinois voted for Democrats to the US House. But Democrats won 14 out of 17 seats. The ratio of 14/17 is the most partisanly lopsided the state has probably ever had. But am I going to whine that this map is undemocratic? Not on your life.

IMO I don't think you can take the one person, one vote line of cases seriously without arriving at some constitutional limits on gerrymandering.

I’m pretty sure he doesn’t take the one person, one vote cases seriously and believes southern states should be allowed to go back to 20:1 disparities in state legislative  districts.

The lawsuits came from the South, but the very worst disparities were actually elsewhere, like Alpine County and Los Angeles County both having 1 state senate district under the CA constitution at the time.

[MarkD]

Partisan gerrymandering is nothing more than an attempt to take advantage of the predictability of the voters. There is absolutely nothing undemocratic about it whatsoever. ERM64man, you are never, ever going to get me to agree with you that whenever partisan gerrymandering occurs (such as in Illinois, where I live now), democracy dies. The Illinois map is clearly gerrymandered now; about 56% of the voters of Illinois voted for Democrats to the US House. But Democrats won 14 out of 17 seats. The ratio of 14/17 is the most partisanly lopsided the state has probably ever had. But am I going to whine that this map is undemocratic? Not on your life.

IMO I don't think you can take the one person, one vote line of cases seriously without arriving at some constitutional limits on gerrymandering.

Steve Rogers is correct; I do not take the one man, one vote line of cases as correct interpretations of the Constitution.
https://talkelections.org/FORUM/index.php?topic=496991.msg8632685#msg8632685

Even far-left Supreme Court Justices like William Brennan and Thurgood Marshall had very vague ideas about when and how to decree a partisan gerrymander to be unconstitutional. See the opinion that they joined in Davis v. Bandemer, 478 U.S. 109 (1986) (and compare that opinion to the dissenting opinion by Powell, joined by Stevens).

[oldkyhome]

No matter how this case comes down on the specifics (and I very much expect a fractured court on the ISL issue), in the end Speaker Moore will win 6-3. I guarantee it.

[John Dule]

This crank theory will hopefully go nowhere. It is deranged to say that state legislatures can somehow override the very documents enabling their power (their state constitutions) without any review in the courts. Name me another power in this country held by any branch of government that is wholly unchecked. There is also the fact that Article I was written before the Bill of Rights was incorporated against the states via the 14th Amendment; the Reconstruction amendments fundamentally altered the balance of power between the states and the federal government, so even if ISL were true at the founding (it wasn't), the Equal Protection Clause should still constrain state legislatures.

In any case, this is not just about "gerrymandering." This is about the entire structure of our democracy.

[politicallefty]

If you read Chief Justice Roberts's majority opinion in 2019's Rucho v. Common Cause (joined in full by the four other conservatives, all of whom are still on the Court), he specifically mentions the ways in which state legislatures have been restrained or outright bypassed by state constitutions and statutes and the states courts interpreting those accordingly:

The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). The dissent wonders why we can’t do the same. See post, at 31. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply. (We do not understand how the dissent can maintain that a provision saying that no districting plan “shall be drawn with the intent to favor or disfavor a political party” provides little guidance on the question. See post, at 31, n. 6.) Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines. Mo. Const., Art. III, §3.

This is from the opinion of the Court just three and a half years ago. None of the other Justices in the majority took issue with it at the time and it's not like Justices such as Thomas or Gorsuch have any issue with writing a concurrence when they feel it necessary. There's precedent on top of precedent on top of precedent that should leave absolutely no runway for this theory to get off the ground.

The only exception for a state legislature to act contrary to its own constitution is Article V. I think the difference was noted by Solicitor General Prelogar when she was responding to Justices Kagan and Jackson. Justice Jackson was really focusing in on the fact that the law-making authority of a legislature is derived from its state constitution and that authority is subject to all of the checks and balances that may exist. When it comes to ratification (unlike the Elections Clause), that is not a law-making function, but rather a specific federal function (as the Court recognized a century ago).

[Skill and Chance]

If you read Chief Justice Roberts's majority opinion in 2019's Rucho v. Common Cause (joined in full by the four other conservatives, all of whom are still on the Court), he specifically mentions the ways in which state legislatures have been restrained or outright bypassed by state constitutions and statutes and the states courts interpreting those accordingly:

The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015). The dissent wonders why we can’t do the same. See post, at 31. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply. (We do not understand how the dissent can maintain that a provision saying that no districting plan “shall be drawn with the intent to favor or disfavor a political party” provides little guidance on the question. See post, at 31, n. 6.) Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. See Colo. Const., Art. V, §§44, 46; Mich. Const., Art. IV, §6. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines. Mo. Const., Art. III, §3.

This is from the opinion of the Court just three and a half years ago. None of the other Justices in the majority took issue with it at the time and it's not like Justices such as Thomas or Gorsuch have any issue with writing a concurrence when they feel it necessary. There's precedent on top of precedent on top of precedent that should leave absolutely no runway for this theory to get off the ground.

The only exception for a state legislature to act contrary to its own constitution is Article V. I think the difference was noted by Solicitor General Prelogar when she was responding to Justices Kagan and Jackson. Justice Jackson was really focusing in on the fact that the law-making authority of a legislature is derived from its state constitution and that authority is subject to all of the checks and balances that may exist. When it comes to ratification (unlike the Elections Clause), that is not a law-making function, but rather a specific federal function (as the Court recognized a century ago).

It was pretty clear from the oral arguments that there are at most 3 votes for any of the extreme stuff, so I think we can stop worrying about that. 

We do not understand how the dissent can maintain that a provision saying that no districting plan “shall be drawn with the intent to favor or disfavor a political party” provides little guidance on the question.

The remaining, much narrower question is what happens when the constitutional provision is "elections shall be free."  There may be 5-6 votes that a state court interpret rules for federal redistricting out of that. 

[politicallefty]

It was pretty clear from the oral arguments that there are at most 3 votes for any of the extreme stuff, so I think we can stop worrying about that. 

We do not understand how the dissent can maintain that a provision saying that no districting plan “shall be drawn with the intent to favor or disfavor a political party” provides little guidance on the question.

The remaining, much narrower question is what happens when the constitutional provision is "elections shall be free."  There may be 5-6 votes that a state court interpret rules for federal redistricting out of that.

I'm not convinced from oral arguments that we're out of the woods here. While I did make the point above regarding the majority opinion in Rucho, it's the dissenting opinions in Arizona State Legislature v. Arizona Independent Redistricting Commission that give me pause. The majority in that case is long gone, though Roberts has gone out of his way from time to time to give due deference to stare decisis. (Granted, this case is basically that one on steroids. I looked over some of the oral arguments in the Arizona case and Paul Clement was fairly restrained in his arguments, though that was when Justice Kennedy was still on the Court too.)

My post above was simply opining on what should happen if the Court is to be logically consistent. The Court gave assurances that its decision was not the end of the world for those seeking a constitutional remedy to extreme partisan gerrymandering. That part of the opinion was the Court accepting the precedent from the Arizona case four years prior.