What happens with ISL?

[ProgressiveModerate]

In the thread about mid-decade redistricting, this came up so I’m curious as to how you think scouts will rule on the ISL

Imo, fully adopting it would be one of the most hackish but also consequential decisions by this court because it effectively prevents any reform to the process of redistricting process form occurring but also makes it so states can get away with more unfair election laws which could lead to chaos.

My guess is they do a half-way sort of ruling, that overturns ballot initiatives related to election laws but allow court intervention to be still remain given no court intervention would lead to chaos. The ruling would be 5-4 with the liberals, Roberts, and Kavanaugh coming to this agreement while the 4 others want something more extreme. I’m no expert on all the judges individual philosophies and personal opinions on ISL though so not necessarily a super informed take

[Skill and Chance]

State court jurisdiction over federal election rules appears to be much more at risk than the ability to modify federal election rules with a referendum.  I don't think the latter is even necessarily at issue.
 There's a 100 year old SCOTUS precedent that a statewide referendum vote under a state's normal referendum rules can repeal a congressional map adopted by the legislature, and another one that the governor can veto a congressional map passed by the legislature under the normal veto rules in the state. 

By contrast, I could actually see them ruling that state courts have no jurisdiction over federal election rules passed by their legislatures and only federal courts can intervene.  This would still mean federal courts could (at least in theory) enforce all of the federal laws and federal constitutional provisions on voting rights against the legislature.  Note that if SCOTUS ruled this way, it would be giving itself a lot more power.

However, I don't think that's the most likely scenario.  First of all, it's highly impractical, because state and federal elections would end up being conducted under separate rules in many states.  Perhaps more states would move all their state level elections to odd years, but if they were combined on the federal election day, there would need to be 2 separate ballots, check-in processes, etc.  In theory, someone could be eligible to vote in one, but not in the other.  It's not impossible, but I doubt the Roberts/Kavanaugh/Barrett wing goes for that. 

If it's an intermediate decision, I don't think it would necessarily be a difference between state court action vs. governor action vs. a referendum.  I think it would be a general limit on how much the legislature can be cut out of the process, with the idea that it can consent to bring other people in being a factor.  For example, a majority of the states that use commissions for congressional redistricting put some state legislators on the commissions.  I can't imagine SCOTUS having a problem with that.  They might not have a problem with a court asking the legislature to redraw a map or a court being asked to resolve a deadlock either, but they probably do have a problem with a court imposing its own map against the legislature's wishes (as in NC and PA) or a court changing the absentee ballot process to create a postmark deadline instead of an arrival deadline at the last minute (as in PA 2020).  Weirdly, a pro-ISL ruling would remove all doubt that the 2019 PA no-excuse absentee law is valid.

Besides, do we really think someone as results-oriented as Sam Alito is going to invalidate the CA and NY commissions and give the House to the Democrats for the decade?!

[ProgressiveModerate]

State court jurisdiction over federal election rules appears to be much more at risk than the ability to modify federal election rules with a referendum.  I don't think the latter is even necessarily at issue.
 There's a 100 year old SCOTUS precedent that a statewide referendum vote under a state's normal referendum rules can repeal a congressional map adopted by the legislature, and another one that the governor can veto a congressional map passed by the legislature under the normal veto rules in the state. 

By contrast, I could actually see them ruling that state courts have no jurisdiction over federal election rules passed by their legislatures and only federal courts can intervene.  This would still mean federal courts could (at least in theory) enforce all of the federal laws and federal constitutional provisions on voting rights against the legislature.  Note that if SCOTUS ruled this way, it would be giving itself a lot more power.

However, I don't think that's the most likely scenario.  First of all, it's highly impractical, because state and federal elections would end up being conducted under separate rules in many states.  Perhaps more states would move all their state level elections to odd years, but if they were combined on the federal election day, there would need to be 2 separate ballots, check-in processes, etc.  In theory, someone could be eligible to vote in one, but not in the other.  It's not impossible, but I doubt the Roberts/Kavanaugh/Barrett wing goes for that. 

If it's an intermediate decision, I don't think it would necessarily be a difference between state court action vs. governor action vs. a referendum.  I think it would be a general limit on how much the legislature can be cut out of the process, with the idea that it can consent to bring other people in being a factor.  For example, a majority of the states that use commissions for congressional redistricting put some state legislators on the commissions.  I can't imagine SCOTUS having a problem with that.  They might not have a problem with a court asking the legislature to redraw a map or a court being asked to resolve a deadlock either, but they probably do have a problem with a court imposing its own map against the legislature's wishes (as in NC and PA) or a court changing the absentee ballot process to create a postmark deadline instead of an arrival deadline at the last minute (as in PA 2020).  Weirdly, a pro-ISL ruling would remove all doubt that the 2019 PA no-excuse absentee law is valid.

Besides, do we really think someone as results-oriented as Sam Alito is going to invalidate the CA and NY commissions and give the House to the Democrats for the decade?!

Really interesting and more thorough analysis than mine.

I do wonder if scouts will try to pick and choose to invalidate as many court/commissions in R controlled states while keeping them in Dem controlled states. I don’t understand why Rs are arguing for invalidating court and commission maps since overall that heavy favors Dems (NC/AZ < CA/NY/WA/CO). Kinda just seems like AZ and NC Rs are salty, and it’s not even guaranteed Rs will control AZ’s government after 2022

I honestly feel like if scotus annuls the commission in Cali specifically, Dems should offer an agreement to Rs where basically they won’t gerrymander if Rs back redistricting reform but other wise will brutally gerrymander (Cali can single-handedly shift the median seat to the left of the nation).

One thing I’ve gotten upset with Dems about is putting redistricting reform in a huge package with a bunch of other things that are much easier for Republicans to argue against. An up or down vote to at least ban extreme gerrymanders would be quite telling.

[Torie]

In the thread about mid-decade redistricting, this came up so I’m curious as to how you think scouts will rule on the ISL

Imo, fully adopting it would be one of the most hackish but also consequential decisions by this court because it effectively prevents any reform to the process of redistricting process form occurring but also makes it so states can get away with more unfair election laws which could lead to chaos.

My guess is they do a half-way sort of ruling, that overturns ballot initiatives related to election laws but allow court intervention to be still remain given no court intervention would lead to chaos. The ruling would be 5-4 with the liberals, Roberts, and Kavanaugh coming to this agreement while the 4 others want something more extreme. I’m no expert on all the judges individual philosophies and personal opinions on ISL though so not necessarily a super informed take

So the NC map stands because a court can interpret its state constitution's version of the equal protection clause as proscribing gerrymanders is your surmise, while referenda are out? That does not make a lot of sense. In effect you are saying that state constitutions on matters of redistricting can only be done by state legislatures. Suppose by referenda the equal protection clause and whatever else the state supreme court relied upon were repealed by referenda?

[ProgressiveModerate]

In the thread about mid-decade redistricting, this came up so I’m curious as to how you think scouts will rule on the ISL

Imo, fully adopting it would be one of the most hackish but also consequential decisions by this court because it effectively prevents any reform to the process of redistricting process form occurring but also makes it so states can get away with more unfair election laws which could lead to chaos.

My guess is they do a half-way sort of ruling, that overturns ballot initiatives related to election laws but allow court intervention to be still remain given no court intervention would lead to chaos. The ruling would be 5-4 with the liberals, Roberts, and Kavanaugh coming to this agreement while the 4 others want something more extreme. I’m no expert on all the judges individual philosophies and personal opinions on ISL though so not necessarily a super informed take

So the NC map stands because a court can interpret its state constitution's version of the equal protection clause as proscribing gerrymanders is your surmise, while referenda are out? That does not make a lot of sense. In effect you are saying that state constitutions on matters of redistricting can only be done by state legislatures. Suppose by referenda the equal protection clause and whatever else the state supreme court relied upon were repealed by referenda?

Honestly idk I’m no legal expert on these sorts of things so sorta just throwing out what I think with very little basis or logic. Ig they could still say that courts outright drawing a map without specific legal problem isn’t allowed hence undoing NC and PA, but pretty sure that would also undo NY which ik the GOP doenst want. Who knows

[Torie]

In the thread about mid-decade redistricting, this came up so I’m curious as to how you think scouts will rule on the ISL

Imo, fully adopting it would be one of the most hackish but also consequential decisions by this court because it effectively prevents any reform to the process of redistricting process form occurring but also makes it so states can get away with more unfair election laws which could lead to chaos.

My guess is they do a half-way sort of ruling, that overturns ballot initiatives related to election laws but allow court intervention to be still remain given no court intervention would lead to chaos. The ruling would be 5-4 with the liberals, Roberts, and Kavanaugh coming to this agreement while the 4 others want something more extreme. I’m no expert on all the judges individual philosophies and personal opinions on ISL though so not necessarily a super informed take

So the NC map stands because a court can interpret its state constitution's version of the equal protection clause as proscribing gerrymanders is your surmise, while referenda are out? That does not make a lot of sense. In effect you are saying that state constitutions on matters of redistricting can only be done by state legislatures. Suppose by referenda the equal protection clause and whatever else the state supreme court relied upon were repealed by referenda?

Honestly idk I’m no legal expert on these sorts of things so sorta just throwing out what I think with very little basis or logic. Ig they could still say that courts outright drawing a map without specific legal problem isn’t allowed hence undoing NC and PA, but pretty sure that would also undo NY which ik the GOP doenst want. Who knows

I appreciate your efforts and brooding about it.

[ProgressiveModerate]

In the thread about mid-decade redistricting, this came up so I’m curious as to how you think scouts will rule on the ISL

Imo, fully adopting it would be one of the most hackish but also consequential decisions by this court because it effectively prevents any reform to the process of redistricting process form occurring but also makes it so states can get away with more unfair election laws which could lead to chaos.

My guess is they do a half-way sort of ruling, that overturns ballot initiatives related to election laws but allow court intervention to be still remain given no court intervention would lead to chaos. The ruling would be 5-4 with the liberals, Roberts, and Kavanaugh coming to this agreement while the 4 others want something more extreme. I’m no expert on all the judges individual philosophies and personal opinions on ISL though so not necessarily a super informed take

So the NC map stands because a court can interpret its state constitution's version of the equal protection clause as proscribing gerrymanders is your surmise, while referenda are out? That does not make a lot of sense. In effect you are saying that state constitutions on matters of redistricting can only be done by state legislatures. Suppose by referenda the equal protection clause and whatever else the state supreme court relied upon were repealed by referenda?

Honestly idk I’m no legal expert on these sorts of things so sorta just throwing out what I think with very little basis or logic. Ig they could still say that courts outright drawing a map without specific legal problem isn’t allowed hence undoing NC and PA, but pretty sure that would also undo NY which ik the GOP doenst want. Who knows

I appreciate your efforts and brooding about it.

Thank you. I need to rlly strengthen my knowledge in the legal field I think.

[Skill and Chance]

State court jurisdiction over federal election rules appears to be much more at risk than the ability to modify federal election rules with a referendum.  I don't think the latter is even necessarily at issue.
 There's a 100 year old SCOTUS precedent that a statewide referendum vote under a state's normal referendum rules can repeal a congressional map adopted by the legislature, and another one that the governor can veto a congressional map passed by the legislature under the normal veto rules in the state. 

By contrast, I could actually see them ruling that state courts have no jurisdiction over federal election rules passed by their legislatures and only federal courts can intervene.  This would still mean federal courts could (at least in theory) enforce all of the federal laws and federal constitutional provisions on voting rights against the legislature.  Note that if SCOTUS ruled this way, it would be giving itself a lot more power.

However, I don't think that's the most likely scenario.  First of all, it's highly impractical, because state and federal elections would end up being conducted under separate rules in many states.  Perhaps more states would move all their state level elections to odd years, but if they were combined on the federal election day, there would need to be 2 separate ballots, check-in processes, etc.  In theory, someone could be eligible to vote in one, but not in the other.  It's not impossible, but I doubt the Roberts/Kavanaugh/Barrett wing goes for that. 

If it's an intermediate decision, I don't think it would necessarily be a difference between state court action vs. governor action vs. a referendum.  I think it would be a general limit on how much the legislature can be cut out of the process, with the idea that it can consent to bring other people in being a factor.  For example, a majority of the states that use commissions for congressional redistricting put some state legislators on the commissions.  I can't imagine SCOTUS having a problem with that.  They might not have a problem with a court asking the legislature to redraw a map or a court being asked to resolve a deadlock either, but they probably do have a problem with a court imposing its own map against the legislature's wishes (as in NC and PA) or a court changing the absentee ballot process to create a postmark deadline instead of an arrival deadline at the last minute (as in PA 2020).  Weirdly, a pro-ISL ruling would remove all doubt that the 2019 PA no-excuse absentee law is valid.

Besides, do we really think someone as results-oriented as Sam Alito is going to invalidate the CA and NY commissions and give the House to the Democrats for the decade?!

Really interesting and more thorough analysis than mine.

I do wonder if scouts will try to pick and choose to invalidate as many court/commissions in R controlled states while keeping them in Dem controlled states. I don’t understand why Rs are arguing for invalidating court and commission maps since overall that heavy favors Dems (NC/AZ < CA/NY/WA/CO). Kinda just seems like AZ and NC Rs are salty, and it’s not even guaranteed Rs will control AZ’s government after 2022

I honestly feel like if scotus annuls the commission in Cali specifically, Dems should offer an agreement to Rs where basically they won’t gerrymander if Rs back redistricting reform but other wise will brutally gerrymander (Cali can single-handedly shift the median seat to the left of the nation).

One thing I’ve gotten upset with Dems about is putting redistricting reform in a huge package with a bunch of other things that are much easier for Republicans to argue against. An up or down vote to at least ban extreme gerrymanders would be quite telling.

I don't think this case is explicitly questioning commissions at all.  It's about state court intervention and could end up involving commissions/referenda tangentially.  In the context of state court intervention, Republicans really just want to reverse NC and PA.  MD would also get reversed, but they are willing to accept this as it's still a net win and makes things look less partisan.  Looking toward the future, there's a Chekhov's gun hanging out there because TX chooses its state supreme court by the same method as NC does and 3/9 seats are up every 2 years.  A 6D/3R TX supreme court imposing a map with a majority of Dem-leaning seats in 2027 would be absolutely existential for House Republicans.

I think CA is the reason Republicans generally aren't arguing explicitly against commissions/referenda in this case.  If commissions do come into play, there's an order in which they would likely be at risk:

Safest
IA, OH, UT, NY, WA- the legislative majority can overrule the commission's proposal, sometimes with a supermajority requirement
OH, NJ, VA, WA- some or all of the commissioners are state legislators
AZ, HI, ID, MT- none of the commissioners are state legislators, however state legislative leaders get to directly select at least some of them
CA, MI- the state legislature has no role except the opportunity to reject a handful of commission candidates from the pool, the selection process notably results in many "Republican" commissioners who end up being much more moderate than the national party

Rules imposed on the legislature by referendum (Florida, New York) would presumably be even safer than any of the commissions.  There's a fairly clear opportunity to uphold the NY court intervention on the basis of the additional rules imposed on the legislature being enforceable while striking down the MD/NC/PA interventions which were based on general language that was never applied to redistricting before. 

As far as commissions, CA being one of the first to go makes SCOTUS intervention there unlikely IMO.  However, a ruling that preserves only the commissions with state legislators on them and/or a state legislative override clause could be attractive from a Republican perspective, because the combined impact of AZ/MI/ID/MT starts to cancel out CA and it limits future Dem initiatives in places like AR/MO/OK where the cities will pretty clearly qualify for Dem-leaning districts by 2031 (a Boise swing district is also likely to emerge in ID and the western MT district will only move left from here).  Furthermore, the CA GOP could bring an initiative that imposes rules on districting by the legislature (this sort of approach will generally favor the GOP coalition because county line rules, etc. serve to pack cities in most states).

[Skill and Chance]

Update: SCOTUS just refused to take a case challenging the PA Supreme Court's intervention to draw a congressional map last year after the D governor vetoed the R legislature's proposal.  They also delayed several election-related deadlines to accommodate the time it took to draw the new map.  The case also challenged the fact that the court's map deviated significantly from the legislature's proposal.

I would say this is a very good sign that they aren't going to adopt the more extreme forms of ISL.  Suggests at a minimum that:

1. The governor can still veto laws regulating federal elections
2. State courts can still step in to resolve a deadlock and they don't have to defer to the legislature's interpretation
3. State courts can extend deadlines/change dates related to federal elections to accommodate #2
4. #1 probably implies that laws regulating federal elections can still be altered by referendum because the precedent upholding a governor's veto was based on an earlier precedent upholding the use of a referendum.

[jamestroll]

If ISL is adopted.. It will be time for Democrats to fight back

I honestly think the Democratic candidates in gerrymandered districts like in Utah, Missouri, Georgia, North Carolina, Texas, etc should just head to congress next January 2023 and take power anyway irrespective of election results.

Edit: To be clear, I would be fine with Republicans in gerrymandered districts doing the same thing.

I do not care about election integrity when the system is rigged in itself.

In my life time we had

1) 1 purely stolen election: 2000

2) A very question election that was probably stolen: 2004

3) A candidate winning while losing by millions in the popular vote : 2016

The rightful winners should take power irrespective of "rules".

[ProgressiveModerate]

If ISL is adopted.. It will be time for Democrats to fight back

I honestly think the Democratic candidates in gerrymandered districts like in Utah, Missouri, Georgia, North Carolina, Texas, etc should just head to congress next January 2023 and take power anyway irrespective of election results.

Edit: To be clear, I would be fine with Republicans in gerrymandered districts doing the same thing.

I do not care about election integrity when the system is rigged in itself.

In my life time we had

1) 1 purely stolen election: 2000

2) A very question election that was probably stolen: 2004

3) A candidate winning while losing by millions in the popular vote : 2016

The rightful winners should take power irrespective of "rules".

How was 2004 election stolen? The black turnout/supression in Ohio argument doesn't really hold water from what've I've heard.

[jamestroll]

If ISL is adopted.. It will be time for Democrats to fight back

I honestly think the Democratic candidates in gerrymandered districts like in Utah, Missouri, Georgia, North Carolina, Texas, etc should just head to congress next January 2023 and take power anyway irrespective of election results.

Edit: To be clear, I would be fine with Republicans in gerrymandered districts doing the same thing.

I do not care about election integrity when the system is rigged in itself.

In my life time we had

1) 1 purely stolen election: 2000

2) A very question election that was probably stolen: 2004

3) A candidate winning while losing by millions in the popular vote : 2016

The rightful winners should take power irrespective of "rules".

How was 2004 election stolen? The black turnout/supression in Ohio argument doesn't really hold water from what've I've heard.

I am old enough to remember Ken Blackwell's tricks. Kerry may have won Ohio in 2004 but that is harder to prove.

Gore was the rightful winner of the 2000 election.

If Al Gore won in 2000 we would not have water supply problems in the west now.

Coincidence that we have had declining reservoirs since the 2000 election? I do not think so!