Yep I just read the cert petition. I actually think a fair districts provision of a state constitution might get upheld in some form under Rucho (which at least impliedly recognized them as a way to address partisan gerrymandering in the absence of federal court intervention). But the North Carolina Supreme Court deserves to get slapped down here for trying to assert control over a federal constitutional power more broadly - the North Carolina Constitutional provision in question just says “All elections shall be free.”
Yes. Thurgood Marshall had an ideology. Everybody has an ideology. The issue today is that ideology is tied to partisanship and political outcomes in a way it wasn't in the past. For example, let's take a look at the Supreme Court that decided Roe v. Wade: Majority Chief Justice Warren Burger (R) - Somewhere between moderate and conservative Justice Harry Blackmun (R - Author) - Liberal (although, at that point, he was still moderate) Justice William Douglas (D) - Very, very liberal Justice William Brennan (R) - Liberal Justice Potter Stewart (R) - Moderate Justice Thurgood Marshall (D) - Liberal Justice Lewis Powell (R) - Moderate Dissent Justice Byron White (D) - Conservative Justice William Rehnquist (R) - Conservative Did each of these people have an ideology? Yes. Was their ideology partisan? No. The problem today is not that judges are ideological. It's that they're partisan.
Most of the democrats in Congress wanted to vote for abortion with minor very few limitations. Most of the country won’t go for that. Beato claiming that he’ll yes we are coming for their guns… far left The far left DAs letting hardened criminals back on the streets Biden and others openly claiming to want to shut down big oil and make green energy the winner… not a great sound byte right now. Find the middle.. both sides… and start from there.
Dude, the only thing this "lib" doesn't like is a president trying to overturn a valid election. I think that's what has rankled most of the "libs" on this site. Do you like that he did that, or are you one of the looneys who think he did no such thing?
The North Carolina Supreme Court is asserting control over a state legislative process based on the state constitution. It's absurd for Republican SCOTUS to try and involve itself here, and the "Independent State Legislature Doctrine" is another absurd, ahistorical fiction created by Republicans to expand the power of an institution they control and have corrupted.
For the record… I think Trump did try to overturn the election. He could have complained and argued.. no problem happens all the time but he went to crazy town to get what he wanted. I also did not mean to imply that the left policies I mentioned above are the sole reason our country is jacked .They are one of the reasons the far right is pushing back harder. Every time one side pushes the pendulum too far one direction the morons on the other side try to show just how far they can swing it…
. That's only half the truth and proves my point actually. Obama pulled an end run gaming the system by convincing Pelosi to have the House pass the Senate version of the bill (remember that both houses had their own version) and then using reconciliation to amend the bill to fit what the Democrats wanted in it. Perhaps you'd prefer the example of Harry Reid pulling the same crap in 2013 with the nuclear option that McConnell did in 2020 to run the federal judge appointments by majority instead of breaking the filibuster? Could be argued that's why the SCOTUS is made up as it is. McConnell used the same playbook that Reid did 7 years prior. Again, my only point here is that both teams are very good at gaming the system. I disagree with both parties when they do it because it undermines the point of the system.
It’s not an ordinary state legislative process though - states don’t have inherent authority to regulate federal elections, because that’s a power granted by the US Constitution, which vests it squarely in “the Legislature thereof.” I get the argument as to why state law can impose procedural requirements on the exercise of that legislative authority (quorum, single subject, presentment, etc. - essentially that the state legislature has to validly act as the state legislature), but I also get the argument against imposing substantive limits on the exercise of a federal constitutional power. In that respect, the argument is based at least in part on the same reasoning underlying why states can’t impose federal office term limits (that the state can’t have a “reserved power” under the Tenth Amendment to check a power flowing from the federal constitution itself).
I've found, and I suspect you have, too, that a group of people with (a) different views honestly held, (b) open minds, and (c) a willingness to compromise because they are humble enough to realize they don't have a pipeline to God Almighty and THE Truth, often arrives at the best results. Sadly, I've also found that such groups are rare, and in Congress and on the current U.S. Supreme Court, extinct.
It doesn't matter how you classify the state legislative process. State constitutions and courts exist to constrain the state legislative process and the state legislature, period. The idea that delegating that power to the state legislatures means that any limitations imposed by the people of the state on their legislature and its legislative process is blocked by the U.S. Constitution is incoherent theory. It's completely inconsistent with how we interpret delegations in essentially every other context. When the U.S. Constitution delegates power to Congress, it doesn't preclude judicial review. Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish by Vikram D. Amar, Akhil Amar :: SSRN From pages 24 and 26: Remarkably, the Bush three advocates of ISL offered nothing—nothing!—to suggest that anyone at the Founding would have understood state “legislature” to mean a free-floating body untethered to the state constitution. Or, a body whose legislative work product would be free from state court jurisdiction and instead subject largely or wholly to federal judicial interpretation. In fact, the public meaning of state “legislature” was clear and well accepted at the Founding: A state’s “legislature” was not just an entity created to represent the people; it was an entity created and constrained by the state constitution. The adoption of new, republican state constitutions up and down the American continent was a truly transcendent achievement in the late 1770s, acclaimed and revered by Americans everywhere. These new state constitutions were the very heart and soul, legally, of the American revolution.50 These state constitutions were universally understood as creations of the American people themselves. So of course state constitutions were understood as supreme over state legislatures at the Founding! And of course state courts could—and did—enforce these state higher laws against state legislatures themselves. Notable state judicial review under state constitutions in fact predated the Philadelphia Convention, Federalist No. 78, and Marbury v. Madison. 51 Indeed, state constitutions formed the basic template for the Federal Constitution itself in 1787–88.52 * * * So too, as a backdrop principle, state people and state constitutions are masters of state legislatures. 56 Thus we should not read the words of Article II, section 1 (or the similar words of Article I, section 4, for that matter) as excluding control by state peoples and state constitutions. Since the Revolution, every state legislature has been defined and circumscribed, both procedurally (e.g., What counts as a quorum? Is the governor involved in legislation?) and substantively (e.g., What rights must the legislature respect?) by its state constitution, which in turn emanates from the people of each state. When a state legislature violates the procedural or substantive state constitutional limitations upon it, it is no longer operating as a true state legislature for these purposes. The matter is really no different from what Chief Justice John Marshall said in Marbury v. Madison and what Alexander Hamilton said before that in the Federalist No. 78, and what the Constitution itself said even earlier in the Article VI Supremacy Clause and elsewhere: When Congress enacts an unconstitutional bill, its actions simply cease to have the force of law. The same first principles hold true when a state legislature enacts a bill violative of its state constitution.
That's not true, either. NCSC relied on multiple sections of the NC Constitution, in addition to the free elections clause, to determine that partisan gerrymanders were unlawful. And it wasn't some flippant back of the hand. It was a 140-page opinion that analyzed, in detail, the text, history, structure, and intent of those provisions. The NC legislature drafted and ratified the NC constitution, and the NCSC, as the highest court of that state, determined what those laws mean. That's the way our system works. Just like--much to my chagrin--SCOTUS has the authority to interpret federal law, NCSC has that same authority with respect to state law. Even if you disagree with their conclusions or motivations or reasoning, as I do with SCOTUS, that does not change the fact that NCSC has the final call with respect to the meaning of state law. If SCOTUS abrogates that fundamental principle, they effectively invalidate Marbury, which means their opinion doesn't matter anyway.
The analogy to federal judicial review falls apart though. The reason the federal constitution can have federal courts act as a check on Congress is because Congress’s law-making power comes from the same federal constitution as the federal court’s powers do. A state court’s constitutional jurisdiction does not come from the same source as a state legislature’s power to prescribe regulations for federal elections - the state court’s power comes from the state constitution while, for the legislature, that’s a federal constitutionally derived power. It also happens to be the reading consistent with the plain text, because it doesn’t require you to read “shall be prescribed in each State by the Legislature thereof” as meaning “unless the Secretary of State decides that the absentee ballot deadline should be extended” or “unless the state courts decide that they lack the authority to do so.” If the founders just meant “by the ordinary legal process of each state,” it wouldn’t have been hard to write a much more simple provision: “shall be prescribed by each State.”
Also, as the federal government is one of limited powers, there is a fairly persuasive argument that the purpose of the elections clause was to grant the federal government the authority to make exceptions to state law for federal elections, not to place limits on the States’ internal lawmaking process. It certainly was never envisioned as granting federal courts judicial review over the meaning of state law, as @GatorBen suggests. But he can feel free to point out where any of the founders even hinted at that insane theory.
