{"id":55112,"date":"2022-12-07T14:35:34","date_gmt":"2022-12-07T22:35:34","guid":{"rendered":"https:\/\/lapost.us\/?p=55112"},"modified":"2022-12-07T14:35:34","modified_gmt":"2022-12-07T22:35:34","slug":"conservatives-skeptical-court-will-buy-gop-election-conservatism","status":"publish","type":"post","link":"https:\/\/lapost.us\/?p=55112","title":{"rendered":"Conservatives Skeptical Court Will Buy GOP Election Conservatism"},"content":{"rendered":"
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By<\/span>Mark Hedin<\/a><\/div>\n<\/div>\n<\/div>\n
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As the Supreme Court\u00a0prepared to hear arguments<\/a>\u00a0in Moore v. Harper today (Dec. 7), conservative legal experts described a misguided effort that, even if successful, might backfire on its GOP sponsors.<\/p>\n

But, they were clear, if the U.S. Supreme Court decides the plaintiffs\u2019 \u201cIndependent State Legislature\u201d theory has merit, elections nationwide could be thrown into chaos.<\/p>\n

During a press briefing hosted by Common Cause and the Southern Coalition for Social Justice on Dec. 6, retired federal judge Michael Luttig, who spent 15 years on the U.S. Court of Appeals after working in the Reagan and first Bush administrations, and Ben Ginsberg, who\u2019s advised a host of campaigns and politicians, including every GOP presidential nominee since Bush Sr., discussed the case, what its effects could be and how they think it might turn out.<\/p>\n

\u201cThe Court will decide essentially all the most important election law issues under the U.S. Constitution, for the presidency, Congress, the drawing of legislative congressional districts,\u201d Luttig said. \u201cIt\u2019s the most important case for American democracy since the founding; that\u2019s not hyperbole or overstatement.\u201d<\/p>\n

The plaintiffs in Moore v. Harper are claiming that the Constitution\u2019s\u00a0\u201celections clause\u201d<\/a>\u00a0gives\u00a0state legislatures alone absolute oversight<\/a>\u00a0over all aspects of local and federal elections within their states.<\/p>\n

Of this so-called \u201cindependent state legislature\u201d theory, Ginsberg said, \u201cWe ought not be misty-eyed about from where it sprung. This theory gained prominence, really, after successful Republican redistricting in 2010, a pretty valid political observation that a source of long-term strength for the Republican Party and particular programs could be implemented \u2026 if state legislatures were given more power.\u201d<\/p>\n

An \u201cunwarranted assault\u201d on elections<\/h2>\n

This so-called \u201cindependent state legislature\u201d theory would \u201cbe disruptive and confusing to the way we run elections at a time when trust in elections needs bolstering, not other unnecessary, unwarranted assault,\u201d he said, and offered five specific examples:<\/p>\n

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  1. \u201cIt would impact who decides who wins elections\u2026 irrespective of the popular vote. It would be the first time since our founding that, essentially, a legislative branch could go unchecked,\u201d he said, and allow elected officials to keep themselves in power through unlimited gerrymandering.<\/li>\n
  2. Gubernatorial vetoes would become irrelevant, along with referenda and initiative processes, and procedures that impact federal elections, such as redistricting criteria, registration, absentee voting, results certification would all become subject to the whims of whoever was in power in the legislature.<\/li>\n
  3. \u201cYou can\u2019t take away federal constitutional protections,\u201d Ginsberg said, but \u201cat a time when the U.S. Supreme Court seems fairly intent on trying to reduce its election law caseload,\u201d Ginsberg said, a ruling for the plaintiffs would make federal courts \u201cthe only island left in the sea\u201d for those challenging state legislators\u2019 election oversight, creating \u201can explosion of federal litigation, right close to the election.\u201d<\/li>\n
  4. Also, Ginsberg said, \u201cIt would really have a bad impact on what happens in elections in emergencies.\u201d When it comes to legislatures, he said, \u201cquick movement into the breach is not their forte, yet the rights of people to be able to cast ballots would be at stake.\u201d Past elections have had to contend with circumstances such as Hurricane Sandy (2012), Hurricane Katrina in 2005 and the 9-11 attacks of 2001.<\/li>\n
  5. And then, Ginsberg said, \u201cIt\u2019s worth talking about the unintended consequences.\u201d Whatever gains a favorable decision in Moore v. Harper might give the GOP in North Carolina could easily be offset in other parts of the country.<\/li>\n<\/ol>\n

    Congressional maps<\/h2>\n

    \u201cMy view of the \u201921-\u201922 redistricting process,\u201d Ginsberg said, \u201cwas that Republicans had a much better cycle in terms of what the courts did than Democrats. Republican courts upheld maps in states like Texas and Alabama and Florida. In states where Democrats control both branches of the legislature they suffered legal setbacks \u2013 New York, Maryland, New Mexico.<\/p>\n

    \u201cI\u2019m not sure if you unwind the New York map, which would be possible if ISL is adopted, that Democrats don\u2019t pick up enough seats to take over the House of Representatives.\u201d<\/p>\n

    Moore v. Harper<\/a>, named for North Carolina speaker of the house Tim Moore and Rebecca Harper, one of the plaintiffs who first challenged North Carolina redistricting, seeks to revert the state\u2019s court-ordered 14 Congressional district maps back to the ones the GOP-dominated legislature had approved. Those maps originally appeared to favor Republicans in at least 10 of the 14 races, but given revised maps, the state\u2019s evenly divided voters split the delegation 7-7.<\/p>\n

    In New York, the Democratic Party-controlled state legislature\u2019s 26 new Congressional district maps favored Democrats in 22. But when a court agreed with GOP plaintiffs that the maps were unfair and ordered new ones, Democrats won only 15.<\/p>\n

    Consequences for democracy<\/h2>\n

    \u201cIt\u2019s perhaps the most politically fraught case ever decided in the Supreme Court, with grave consequences for federal elections and democracy itself,\u201d Luttig said. \u201cBut within the Supreme Court, it is nothing but a question of constitutional interpretation.\u201d<\/p>\n

    \u201cI do not believe that there is any support whatsoever in the constitutional text, nor in the history of the framing of the Constitution, that would support that most aggressive version of the independent state legislature theory the petitioners are arguing for,\u201d Luttig said.<\/p>\n

    \u201cI do not believe the Supreme Court will hold that. I believe the only real question before the court is \u2018to what extent does the Supreme Court have the power to constrain the state supreme court\u2019s power in the interpretation of the state\u2019s own constitution?\u2019<\/p>\n

    \u201cThat\u2019s what I expect the court to do. I expect that the standard they adopt will be exceedingly narrow and exceedingly deferential to the state supreme courts.\u201d<\/p>\n

    \u201cAllowing state legislatures to go completely unchecked in the sensitive area of federal elections, I think, is unlikely,\u201d Ginsberg agreed.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

    ByMark Hedin Dec 7, 2022 As...<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-55112","post","type-post","status-publish","format-standard","hentry","category-u-s-a"],"_links":{"self":[{"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/posts\/55112","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lapost.us\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=55112"}],"version-history":[{"count":1,"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/posts\/55112\/revisions"}],"predecessor-version":[{"id":55113,"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/posts\/55112\/revisions\/55113"}],"wp:attachment":[{"href":"https:\/\/lapost.us\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=55112"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lapost.us\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=55112"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lapost.us\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=55112"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}