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

[politicallefty]

I haven't been amongst the doomers when it comes to the new composition of the Court, but I do feel like things have taken a rather ominous turn in the past few months. I'll know we're in big trouble if they go after Arizona State Legislature v. Arizona Independent Redistricting Commission. I think that would be their first salvo before going after the Warren Court precedents. This is why I feel the anti-gerrymandering provisions of the FTVA are so important. If the commissions go down, we're in big trouble. If they went further and wiped out any state-level regulations (not to mention possibly Section 2 of the VRA), Democrats are locked out of the House no matter what the popular vote is.

[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).

[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.