Last week, which happened to be the tenth anniversary of Shelby County v. Holder, the case that eviscerated the Voting Rights Act, the United States Supreme Court, on a 6-3 vote, struck down the concept of an independent state legislature, a bit of far-right whack-job nonsense that holds those bodies are immune from either executive or judicial oversight when making decisions about federal elections. In its most extreme form, it would allow legislatures to overturn votes.
This concept is grounded in a convoluted and unfounded reading of the first part of the Constitution’s Election Clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . .” It’s clear from the text this is a limited administrative power, and it’s likewise clear from precedent all the way back to Marbury v. Madison that courts have the authority to review legislative actions. But Republicans would have us believe the Elections Clause gives legislatures wide-ranging powers to unilaterally control federal elections.
They have a knack for this kind of thing; see their interpretation of the Second Amendment.
And get this: attorneys for the legislature even went so far as to cite in their brief a purported draft of the Constitution that has long been recognized as a fraud.
If you’re not familiar with the history of the case, Moore v. Harper, a brief summary:
The Republican-dominated North Carolina legislature drew new voting a district map clearly gerrymandered to preserve their party’s lopsided representation in Congress. The state’s majority-Democratic Supreme Court said, in effect, “You must be kidding,” and threw out the map, ordering it to be re-drawn. But a subsequent election swung the court majority Republican, and the original decision was reversed. The case worked its way up to the U.S. Supreme Court, and more than a few people, me included, fretted that the six Republicans would ignore centuries of precedent, as is their wont, and hand state legislatures unfettered authority to rig elections. This was a particular concern as Republicans control 28 state legislatures, including Wisconsin, which might be make-or-break in the 2024 elections. There had been some cause for hope after the Court’s June 8th decision in Allen v. Milligan, which upheld Section 2 of what’s left of the Voting Rights Act. That section prohibits any voting law, practice or map that results in the denial of the right to vote of any citizen on account of race. That decision could have implications for elections in 10 states. Nonetheless, the issue remained.
So it was with great relief that I read Chief Justice Roberts’ decision, particularly the clear and unqualified line: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”
A few days later, the Court rebuffed Ohio Republicans’ effort to overturn their own supreme court’s decision striking down a similarly gerrymandered map. The Court sent the case back to the state supreme court for further proceedings in light of the Moore v. Harper decision.
The good folks Democracy Docket, founded by Marc Elias, the voting rights lawyer who has been spectacularly successful in beating back far-right attempts to suppress voting and even overturn the 2020 election, have a good summary of some of the action at the state level as well as an update on voter suppression efforts.
But the attack on voting rights is much broader and continues unabated. If you’re interested, I wrote on this last fall.
Later.
Posted by scaypgrayce 
Scaypgrayce 