SCOTUS to review "independent state legisilature" theory regarding federal elections next term

[I spent the winter writing songs about getting better]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

[Tartarus Sauce]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

I don't think this is true.

[Skill and Chance]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

I don't think this is true.

It's not technically true because of EV-by-CD in Maine and Nebraska, but all states make laws on how electors are chosen and 48 states do require that they are chosen by statewide popular vote.  There has been no serious attempt to change this post-2020 even in Republican trifecta swing states.

[🐒Gods of Prosperity🔱🐲💸]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

I don't think this case has to do with assigning electors.  It's about "The Times, Places and Manner of holding Elections for Senators and Representatives..." (Article I, Section 4)

[Absentee Voting Ghost of Ruin]

In the immediate aspect of this case Democrats actually have a lot more to gain since they have so many more large states that vote heavily in their favor.  States like California, New York, New Jersey, and Maryland all would be empowered to draw extreme D gerrymanders without any oversight. 

Republicans are limited because all their large states vote more 50/50 like Georgia, Florida, Texas, and Arizona.   There's only so much gerrymandering they can do when the votes simply aren't all there.

While this might backfire on Republicans in several ways, you're missing how this may go. The Trump-McConnell Court won't just toss Baker v. Carr, they'll toss Reynolds v. Sims, too. And then the Texas legislature will put Houston, San Antonio, Dallas, Austin, Fort worth, El Paso, Brownsville and a couple more cities can be one district, and win the other 35. And they'll do similar things to the state legislature maps as well.

[Tartarus Sauce]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

I don't think this is true.

It's not technically true because of EV-by-CD in Maine and Nebraska, but all states make laws on how electors are chosen and 48 states do require that they are chosen by statewide popular vote.  There has been no serious attempt to change this post-2020 even in Republican trifecta swing states.

Is this in regards to which elector slates get chosen? Because they definitely don't all have enforcement provisions for faithless electors.

[Skill and Chance]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

I don't think this case has to do with assigning electors.  It's about "The Times, Places and Manner of holding Elections for Senators and Representatives..." (Article I, Section 4)

The same "legislature thereof" language is used in the clause on appointing electors, so there could be strong implications for a future case on that subject.  

[I spent the winter writing songs about getting better]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

I don't think this is true.

It's not technically true because of EV-by-CD in Maine and Nebraska, but all states make laws on how electors are chosen and 48 states do require that they are chosen by statewide popular vote.  There has been no serious attempt to change this post-2020 even in Republican trifecta swing states.

There was a semi-serious attempt in Arizona to pass a bill giving the Legislature some leeway on this but the House Speaker used a procedural maneuver to effectively kill it. But he's term-limited and won't be around next session.

[SnowLabrador]

Goodbye elections, it was nice knowing you.

[Absentee Voting Ghost of Ruin]

Goodbye elections, it was nice knowing you.

There will still be elections. They just won't be representative. Sham Republic, instead of a representative democracy.

[Badger]

In the immediate aspect of this case Democrats actually have a lot more to gain since they have so many more large states that vote heavily in their favor.  States like California, New York, New Jersey, and Maryland all would be empowered to draw extreme D gerrymanders without any oversight.  

Republicans are limited because all their large states vote more 50/50 like Georgia, Florida, Texas, and Arizona.   There's only so much gerrymandering they can do when the votes simply aren't all there.

Will Democrats be willing to aggressively gerrymander though? Or will they yet again chicken out in the name of "bipartisanship"?

Oh you had better believe they would do that. They’ll likely be able to maneuver themselves into eternal control of the House in this instance. The GOP is taking a fly swatter to a hornet’s nest with this one.

If (when?) Texas’s legislature flips they will be beyond screwed

But the problem is exactly as you said regarding the if. Basically this insulates state legislatures from gerrymandering prohibitions as well. This effectively means that every single Atlas blue state currently controlled by a republican trifecta, including those so controlled after 2022, will draw maps that effectively make it impossible for Democrats to ever retake control of the legislature. See Wisconsin as a prime example, and Texas isn't much better

[DaleCooper]

I don't think they're concerned about electors in this case, I believe this is an attempt to take away the power of state courts to strike down gerrymandered maps. Likely what we'll end up seeing is an unbeatable legislative majority in every single state due to aggressive gerrymandering, rendering almost all elections other than primary contests pretty much pointless.

[TiltsAreUnderrated]

In the immediate aspect of this case Democrats actually have a lot more to gain since they have so many more large states that vote heavily in their favor.  States like California, New York, New Jersey, and Maryland all would be empowered to draw extreme D gerrymanders without any oversight.  

Republicans are limited because all their large states vote more 50/50 like Georgia, Florida, Texas, and Arizona.   There's only so much gerrymandering they can do when the votes simply aren't all there.

Will Democrats be willing to aggressively gerrymander though? Or will they yet again chicken out in the name of "bipartisanship"?

This is a huge part of the problem - but only part. When the Supreme Court does this and Democrats point out its bad, this negatively polarises their base (to an extent) against such manoeuvres, leading to results like the 2020 redistricting referendum in Virginia.

The other part is that aggressively partisan gerrymanders can (and usually do) differ from the "pro-same party incumbent" gerrymanders that Democrats prefer. A lot of legislatures will opt for a less Democratic-friendly map if it gives legislators or Representatives better chances in their general elections or doesn't change their primary electorate too much. To a lesser extent, this is also a problem Republicans face, but they are generally a bit better at recognising the expendability of their incumbents.

[Skill and Chance]

In the immediate aspect of this case Democrats actually have a lot more to gain since they have so many more large states that vote heavily in their favor.  States like California, New York, New Jersey, and Maryland all would be empowered to draw extreme D gerrymanders without any oversight.  

Republicans are limited because all their large states vote more 50/50 like Georgia, Florida, Texas, and Arizona.   There's only so much gerrymandering they can do when the votes simply aren't all there.

Will Democrats be willing to aggressively gerrymander though? Or will they yet again chicken out in the name of "bipartisanship"?

Oh you had better believe they would do that. They’ll likely be able to maneuver themselves into eternal control of the House in this instance. The GOP is taking a fly swatter to a hornet’s nest with this one.

If (when?) Texas’s legislature flips they will be beyond screwed

But the problem is exactly as you said regarding the if. Basically this insulates state legislatures from gerrymandering prohibitions as well. This effectively means that every single Atlas blue state currently controlled by a republican trifecta, including those so controlled after 2022, will draw maps that effectively make it impossible for Democrats to ever retake control of the legislature. See Wisconsin as a prime example, and Texas isn't much better

They would have to overturn Reynolds v. Sims for Texas to make a Safe R legislative map.  The rural/urban population distribution favors Democrats more dramatically than the federal electoral college favors Republicans and many Texas Republicans are only winning statewide elections by single digits now.

A very underrated outcome here is the Texas legislature giving itself the power to directly choose a winner in disputed elections/recounts and then Dems take over before the next disputed election.

[Devils30]

This would only effect congressional maps if I am correct. Dems could still use state courts to strike down STATE legislative maps. Aka this could happen in PA MI NC WI. Then Dems can win the legislatures from the struck down R state maps and draw their own congressional gerrymanders. The conservatives are eating more than they can chew.

[Skill and Chance]

This would only effect congressional maps if I am correct. Dems could still use state courts to strike down STATE legislative maps. Aka this could happen in PA MI NC WI. Then Dems can win the legislatures from the struck down R state maps and draw their own congressional gerrymanders. The conservatives are eating more than they can chew.

I think this is correct.  State level rules for drawing state legislative districts sufficient to make control of the overall legislature competitive would go a long way toward limiting congressional gerrymandering, if indirectly.

[Blue3]

The Supreme Court is making a great case for why we need a completely new Constitution.

Because yeah, it is the states that decide the Electoral College and the presidency. They just came to an agreement to have people vote and base their decisions based off of that, but there’s nothing to say they have to at least when it comes to presidential elections.

Some of this, like the EPA rules case, could definitely be rectified if Congress acted and just gave more specific legislation to it for climate change. But you know, the filibuster, and the Senate in general being biased towards red/low-populated/rural states, and the gerrymandering in the House, and the influence of corporate interests on campaign funding.

A lot more of this could also change if we passed constitutional amendments, but it’s too difficult, especially in this partisan climate.

This Supreme Court is just getting started. Just wait until Social Security, Medicare, and other pieces of FDR and LBJ’s legacies come up. They are going back to the pre Civil War understanding of the United States as an alliance and trade zone with a common currency (basically the EU).

Eventually I think it will lead to a brand-new constitution. But in the meantime, we need to pay a whole more more attention to making changes at the state level and through state compacts.

[Devils30]

This would only effect congressional maps if I am correct. Dems could still use state courts to strike down STATE legislative maps. Aka this could happen in PA MI NC WI. Then Dems can win the legislatures from the struck down R state maps and draw their own congressional gerrymanders. The conservatives are eating more than they can chew.

I think this is correct.  State level rules for drawing state legislative districts sufficient to make control of the overall legislature competitive would go a long way toward limiting congressional gerrymandering, if indirectly.

The Supreme Court almost certainly has no jurisdiction over state legislative maps barring a violation of federal law. But what if one party controls the state house and the other the state senate? Or Gov veto? I expect a narrower ruling that gives Rs NC and Ds NY maps back but not much more.

[LostInOhio]

I am honestly more concerned the GOP could gain so much control over state legislatures that they could eventually convene a Constitutional Convention, where they rewrite the 1st Amendment to state that the US is a Christian nation or something like that.

This could lead to a supermajority control of at least 30 state legislatures. They’d need 34 to meet the requirements for a Constitutional Convention

[Devils30]

I am honestly more concerned the GOP could gain so much control over state legislatures that they could eventually convene a Constitutional Convention, where they rewrite the 1st Amendment to state that the US is a Christian nation or something like that.

This could lead to a supermajority control of at least 30 state legislatures. They’d need 34 to meet the requirements for a Constitutional Convention

Amendments proposed during a Constitutional Convention must also be ratified by three-fourths of the states.

[Ferguson97]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

Why couldn't they just pass a law today saying "the state's presidential electors will be determined via popular vote; however, a majority of the legislature, within three weeks of the election, may override this and determine the presidential electors" if they passed it before the election?

There's nothing in the Constitution that says they couldn't do that.

[I spent the winter writing songs about getting better]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

Why couldn't they just pass a law today saying "the state's presidential electors will be determined via popular vote; however, a majority of the legislature, within three weeks of the election, may override this and determine the presidential electors" if they passed it before the election?

There's nothing in the Constitution that says they couldn't do that.

They could yes, I'm talking more about when crackpots like Mastriano wanted to pass something like that after the 2020 election and went nowhere.

As noted Arizona had such a bill but the House Speaker opposed it and killed it before a vote with some parliamentary roadblocks. But he's term limited and won't be around next term.

[Buffalo Mayor Young Kim]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

Why couldn't they just pass a law today saying "the state's presidential electors will be determined via popular vote; however, a majority of the legislature, within three weeks of the election, may override this and determine the presidential electors" if they passed it before the election?

There's nothing in the Constitution that says they couldn't do that.

You guys are still operating under the notion that the court has principles.

A legislature can’t be bound by a past legislature and therefore they can what we want will be the ruling from all 6.
And you idiots will still be sitting here arguing that if just the texts or the argument was different.

The Supreme Court has been captured and isn’t practicing anything resembling law anymore.

[Absentee Voting Ghost of Ruin]

I am honestly more concerned the GOP could gain so much control over state legislatures that they could eventually convene a Constitutional Convention, where they rewrite the 1st Amendment to state that the US is a Christian nation or something like that.

This could lead to a supermajority control of at least 30 state legislatures. They’d need 34 to meet the requirements for a Constitutional Convention

Amendments proposed during a Constitutional Convention must also be ratified by three-fourths of the states.

Nah. Just read Article V and apply the same standards that Republicans do to the 2nd Amendment (or any other law they don't like).

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate

Obviously that comma after "shall be valid to all intents and purposes, as part of this Constitution" means that the ratification process only applies to Congressionally proposed amendments, and amendments coming from the convention are auto-ratified by coming from a convention. As long as they're good Republican amendments. Evil Democratic amendments are always invalid, because the Supreme Court says so.

/s (but not as much as I wish...)

[Badger]

There's really nothing preventing state legislatures from assigning electors now, just that all 50 states have laws requiring them to go to the winner of the popular vote in that state and it's such a radical position to repeal it that even the Republican Legislatures and Governors aren't willing to. Someone like Mastriano would be willing to buy still unclear if he could get such a bill passed.

Repealing it after the election would probably be struck down by even the most conservative court as an ex post facto law and we saw how interested courts were in Trump's post-election attempts. Still any case that would potentially push gerrymandering even further is quite worrisome.

Why couldn't they just pass a law today saying "the state's presidential electors will be determined via popular vote; however, a majority of the legislature, within three weeks of the election, may override this and determine the presidential electors" if they passed it before the election?

There's nothing in the Constitution that says they couldn't do that.

They could yes, I'm talking more about when crackpots like Mastriano wanted to pass something like that after the 2020 election and went nowhere.

As noted Arizona had such a bill but the House Speaker opposed it and killed it before a vote with some parliamentary roadblocks. But he's term limited and won't be around next term.

You mean that crackpot masteriano who has nearly even odds of becoming the next governor of pennsylvania? I think you're proving the point here.