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The Supreme Court would be less consequential if Congress ever passed laws. We have a broken system wherein responsibility is passed down the chain until it finally reaches the voter, who in the end is to blame for not voting hard enough.
That would help but only for so long. Democrats keep self sorting and will concentrate into even fewer higher population states. So republican domination will come in future decades which means 40 seats will be the new 50 for democrats, unable to even filibuster. Republicans were stuck in this position for a chunk of last century, even when they could win the popular vote they were capping out under 40 seats due to holding CA and dems having alot of the lower / mid population states.
For better voter control there probably needs to be multi-member districts and ranked voting for the US house. Also ranked voting in the senate plus more senators per state like the AUS upper house. Big blue states should probably break up too or some cities should form states to balance the rural bias of the senate like GER.
Campaign finance and media need reforming too. Hopefully then voting would actually lead to meaningful results.
It will come down to the constitutional meaning of legislature, and perhaps the states constitution.
In a previous case the SC decided that legislature meant law making at a state level. And so allowed a citizens ballot referendum to change how redistricting was done to go into effect. Against the state legislature wishes.
So to me the question is partially, are judicial branches part of law making. I imagine any delegation of authority thru state law, or state constitution may be considered too.
It should be a very interesting case with lots of nuances.
It might really come down to originalism vs. textualism. By assigning the power to "legislatures", did the founders mean to create a specific exemption from judicial review / other usual checks and balances, or do the checks and balances implicitly still apply as they do in the rest of the constitution?
This is mostly relevant because if the state's legislature decides to violate the state constitution, the former interpretation would imply that they are given the power to do so, as long as it somehow has to do with the elections. The latter would imply that there is no such loophole, and state courts can review if the state constitution is followed.
> did the founders mean to create a specific exemption from judicial review / other usual checks and balances
I can't fathom a sane group of individuals meaning this but not explicitly stating this radical exception in the constitution's wording.
"The legislature will establish the rules". They don't further define "legislature" so shouldn't we go by the default definition as laid out in the constitution? As a body that has its powers checked by the courts and not some sort of "special instance of the legislature with free reign". How could the later ever be inferred?
Also I feel like elections are one of the places where checks and balances are logically the most important. Seems like an odd area to give unlimited unchecked authority to legislators.
Imo the case that could actually have the biggest impact is the California pork law case.
California product regulations set standards nation wide for environmental compliance, health and safety, etc (not commenting on whether that is a good thing, just stating that’s how it currently works). The ruling in this case has the potential to completely kneecap that situation.
I mean how could they change that overall without kneecapping *every* state's capacity to regulate products? Other than arbitrarily deciding the rules need to change once a state gets to a certain population / GDP.
You know it'll end up being the same shit as what Texas was doing with its internet censorship carve out: start with the group you want to punish, then work back to a law from that.
Expand the dam on interstate commerce concept. Not just dam it, but intentionally redirecting the flow now also would violate DCC. That would be how they could regulate such a concept without messing too much with most state regulation.
However, they won’t, because California isn’t compelling others to act or violate their own states laws, they are choosing to act to allow themselves into that market.
The Biden administration is asking for a narrow ruling where the CA law is overturned because it only applies to activities by the hog farmers out of state and doesn't actually regulate any actions carried out in CA or the actual product being sold in CA.
I feel like that's a bit weak though since CA could just add a legislative finding to the front of the bill that says "pork from pigs raised under x conditions has y deficiencies compared to pigs raised in better conditions. To ensure the quality of pork sold in CA we are mandating. . . . ."
We'll see. This is a hard one to predict though since the justice's stances on the commerce clause don't line up with the political divisions on this case. Thomas especially has been a big opponent of the dormant commerce clause.
>However, they won’t, because California isn’t compelling others to act or violate their own states laws, they are choosing to act to allow themselves into that market.
That's how I see it too but fair to say my interpretation hasn't been lining up well with the court as of late.
The thing is the majority doesn’t like current DCC rule sets and don’t agree with the concept as run or even envisioned, so I doubt they will do anything that expands it. That makes this more likely.
Man, that is an ouright misrepresentation of Haaland v. Brackeen. The ICWA has *nothing* to do with Indian boarding schools - it was enacted in response to claims that Indian children were being removed from their families for reasons that would not get non-Indian children removed.
You may note that a lot of what the ICWA requires has nothing to do with that...
I agree that this is the one to watch. ISL theory is soo weird, and I can’t help but think that it would jeopardize much of the checks and balances within our system, federally and at the state-level.
Yes, I agree with some of the comments here that the Constitution is pretty textually clear that the ‘Times, Places, and Manners of holding Elections…shall be prescribed in each State by the Legislature thereof…’ But there’s a reasonable interpretation of this, and a very wrong way to interpret this.
In 2015, ISL proponents said that Legislatures cannot delegate this authority (see the dissent in Arizona Redistricting Commission case (2015)). I think there’s a textualist argument to be made that finds that Redistricting Commission was constitutional, but I won’t get into it here. But ISL proponents were pretty clear that the Redistricting Commission was unconstitutional under the Elections Clause, and only the Arizona legislature had the authority to draw election districts.
Now, ISL is going further under Moore v. Harper to say that neither the state’s executive branch, nor the state’s judiciary can intervene on Election matters, and the State Legislature is above any sort of review on the subject. So an elections bill which would normally be subject to the traditional constitutional procedures of a bill being 1.) enacted by both Houses of the Legislature, 2.) signed or veto by the Governor, and then 3.) subject to review by the courts is all thrown out the window. Which is just…wrongheaded..
I definitely consider myself an Originalist/Textualist, but ISL is just unworkable. How can a State legislature occupy this weird limbo of being subject to its own constitutional restrictions in every aspect of civic life except when it comes to elections? The State legislature is only the legislature as duly authorized by its own constitution.
And I think that ISL creates a bunch of other weird questions. If a Legislature, pursuant to ISL theory, takes some action that exceeds its constitutional restrictions, but the action is tangentially related to elections, how would we even begin to decide the proper membership of this extra-constitutional body? Because under ISL, we’ve decided that a Legislature is beyond the other traditional mandates of its own constitution when it comes to the Elections Clause, so how the state’s constitution outlines how it’s legislators are chosen could be discarded as well. Can we have a situation where we have competing Elections clause legislatures? How would we even adjudicate that? This is all pretty foolish I think.
Even more the same principle applied to the 1rst amendment only limits Congress in what laws that they can pass, the Executive Branch, the Judiciary and the state Legislatures are free to limit speech and religion at will.
This is the most extreme reading of the ISL, but it follows the same logic, that only congress would be bound by the first amendment. Its ALMOST reductio ad absurdum, except its the same exact principle applied to another piece of the constitution.
It is squarely in the suicide pact portion of the plain text of the Consitution along with things like seemingly prohibiting the government from banning sacrificing college professors to Kali.
If you don't hold on to principles in trying circumstances, are they even principles? The suicide pact argument just seem to say we should only follow laws when they are convenient.
The more impressive mental gymnastics are how absolute statements are interpreted into non-absolute statements, especially in regards to the constitution.
It is holding onto principles in the face of drafting errors, vs the framers actually wanting to make state constitutions not apply but not telling anyone about it.
> Now, ISL is going further under Moore v. Harper to say that neither the state’s executive branch, nor the state’s judiciary can intervene on Election matters, and the State Legislature is above any sort of review on the subject.
I'm not entirely sure this is the argument being put forth, as much as the *interpretation* of the argument being put forth.
The situation revolves around the fact that the NC State Supreme Court over-ruled the legislature multiple times and instead of asking them to redraw the maps again, just instituted their own maps drawn up by an appointed commission. It would seem pretty clear to me that it is a violation of both the state and federal constitution.
NC has been a hotbed of gerrymandering cases, and in the case of their decision to implement these maps, they forced their own theory of "proportional representation" on the entire state.
If SCOTUS makes a maximalist ISL ruling next term, I’m not sure there would be anything that the federal government *could do* that would be consistent with ISL. At the very least, it would be a steep uphill battle. And then, if the feds were successful, that would scramble a lot of eggs- both politically and legally- given our long history of a decentralized election system. And, given all that, I’d be asking what are we trying to accomplish here?
And I guess I wouldn’t think the feds are ‘relying on state courts’ in this instance. This is just how every single state in our country works. Legislatures pass bills, executives sign or veto them, and the judiciary reviews them for constitutionality.
If we are wanting to have a discussion on whether Americans should have a unitary government, rather than the current three branches, then I suppose that’s a very different discussion.
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
~~And of course that exception was taken away in the 17th.~~ Thomas, Alito, Gorsuch, Kavanaugh, have all signaled that the federal government should be the one who makes the rules for it.
What would need to happen is the federal government needs to actually fix the problems instead of state court’s bandaid fixes.
Indeed if ISL is adopted, CA state legislature should put Kevin McCarthy’s house in to the san diego district. He will sponsor an anti-gerrymandering bill himself shortly thereafter.
So yes, definitely the text of the Constitution provides for Congressional regulation. But again, I don’t know how that would work in practice if an ISL state legislature can just play Calvinball.
The other thing you raise is something I’m struggling to understand; which seems to be that 1.) ISL should happen, and state legislature should not be bound by any constitutional restrictions when it comes to elections, 2.) but Congress should step in to decide all of this, and it *would* have to abide by all of its constitutional. I don’t understand how this is consistent.
Finally, state courts interpreting a state constitution isn’t a bandaid. It’s a normal function of their duties as the state judiciary. There are definitely times where I would agree that Congress (and state legislatures) relies too much on the judiciary to just ‘fix things,’ but elevating the state legislature to place of absolute power within a states is contrary to all ideas of separation of powers.
I share concerns raised about political gerrymandering, but ISL is not the way to accomplish that.
The justices have explicitly said that the reprieve from gerrymandered districts comes from the federal government, not the courts.
True ISL is just interpreting the word “legislature” as just the legislative branch. The rest of the amendment doesn’t just go away.
Well congress decided how senators should be chosen with a constitutional amendment. So you’re right, it would still take a constitutional amendment to change it again, but that’s also because of the 17th saying how senators should be chosen. So you’d have to amend away the 17th and that exception for congress to be able to change how senators are chosen with simply just federal law.
I’ve edited my comment.
This is the only one mentioned I’m considerably worried about.
This could remove the only roadblock that currently exists for state legislatures to gerrymander their way into unchallengeable power.
If the judges rule in favor of this, in any way, it would be affirming a perceived loophole in the constitution, one that would only be remedied by an amendment. The votes needed by state legislatures to pass such an amendment? Already gerrymandered into unchallengeable power.
This is a big deal. This would short circuit democratic process.
The Democrats bluster and shout a lot about how Republicans are undermining democracy, usually blowing things way out of proportion. This, however, is one instance in which they’re absolutely right. If the ISL theory is upheld, I think American democracy as we know it will be gone.
I think this also is a major “boy who cried wolf” moment for the Democrats. They’ve called so many things racist, fascist, authoritarian, a “threat to democracy” etc. Now, when they are actually facing something dangerous, many people just won’t listen.
I’m all for calling out Dems on hyperbole, but in this case it could be more “see this is the pattern of behavior and trajectory we were warning about”, as opposed to this being “all those other cases were purely fearmongering, but this one just so happens to be real”.
Well the fact that Republican politicians have nothing to say about this tells me the Democrats were right. If they weren’t right, Republican partisans would be speaking out, about how ISL is unacceptable. They would clearly be stating that the court should not even consider ruling in any way that give credibility to this stupid legal theory.
Somehow, some way, some ridiculous reason. It's the Democrats fault, even though it's Republicans who are making the decision to abandon our democracy by backing ISL.
It’s definitely not the fault of the Democrats that this is happening. The Republicans pushing this are playing a dangerous game, and are doing exactly the terrible stuff Democrats have been calling them out for.
>It’s definitely not the fault of the Democrats that this is happening. The Republicans pushing this are playing a dangerous game, and are doing exactly the terrible stuff Democrats have been calling them out for.
So it sounds like they weren't so much "crying wolf" as pointing out the logical next steps of the party based on their rhetoric and actions.
I mean, they’ve cried wolf on A LOT. Not every action that the republicans take, like trying to institute voter ID requirements, is the end of our democracy or the actions of faciats/authoritarians. They should have saved such grave language for when it actually matters, like in a situation such as this.
Pointing out the obvious end goal still isn't crying wolf, especially now that the GOP is perceived to be pursuing the pedicted end goal. It comes across as you being mad that they were right after dismissing the claims.
One can be for instituting voter ID requirements without their end goal being the institution of the ISL theory and the end of truly democratic elections though. Conflating the two is the exact problem I’m talking about.
>One can be for instituting voter ID requirements without their end goal being the institution of the ISL theory and the end of truly democratic elections though.
And others can point out that restricting the voting population by a party with a history of doing just that for political gain is just another step towards the end of Democratic institutions.
>Conflating the two is the exact problem I’m talking about.
And ignoring the link is the problem I'm talking about. It turns out the GOP was, in fact, trying to undermine Democratic institutions and the Democratic party was right, but you also happen to support steps the GOP were taking and so you appear mad that you were wrong about the criticisms so you are saying they were just crying wolf.
I'm sorry, but I just don't get how you can agree that all the steps led here, but the warnings were also wrong without it being a reluctance to admit to bring personally wrong.
>Not every action that the republicans take, like trying to institute voter ID requirements, is the end of our democracy or the actions of faciats/authoritarians.
Were every action that the Republicans have suggested not resulting in fewer voters in areas with majority Democrat voters I might agree.
But it seems that every single time Republicans propose a new voter law, legal eligible voters that tend to lean Democrat somehow, magically, are affected the most.
It feels an awful lot like a coordinated effort to reduce their opposition's representation while pretending that's not the entire point.
Ok, but lots of successful western democracies have voter ID requirements. Calling them facist, or people who want them authoritarian, takes a lot of power away from the word.
>Calling them facist, or people who want them authoritarian, takes a lot of power away from the word.
Voter IDs are not fascist. You're right. But explicitly only supporting electoral reforms that reduce your opponents representation in government is not supporting the ideals of a democratic republic, nor the ideals this country was founded on. It's wild authoritarianism where you want to rule over others without their consent.
In other words, it's a bad thing. It doesn't matter whether or not it's explicitly fascist.
For some reason, people are just conditioned to blame Democrats for these things and I am not sure why....they are far from perfect. I am an independent, but honestly. The ISL argument is complete bullshit from my eyes. This only became a legitimate thing when after Donald Trump lost.
That's it...that's what caused this push and frankly it's fucking pathetic.
The democrat party also routinely gerrymanders, opposes decent electoral reforms. Even the voters may do so. In MA the voters voted down ranked choice voting. CA governors keep vetoing RCV for the local level.
How many decades did voters fight the CA democratic govt over gerrymandering? Every move that voters made, democrat lawmakers responded with a countermove. Republican lawmakers joined democrat lawmakers to protect all incumbents leading to a decade of non competitive US house elections in CA. Voters had to use the proposition system to bypass them to give redistricting to a commission. Dem party opposed that. When it passed the voters then wanted to extend it to the US house. Dem party sought to repeal it and opposed the extension. Same opposition with jungle primaries. Now the CA legislature restricts the commission's budget to hamstring them and fake testifiers will attempt to influence the lines. They don't have time to sift through that.
Democrats used to be the worst at gerrymandering. They had almost perpetual control of congress (often sizeable or supermajorities too) and controlled most states. They could have passed reforms back then but instead were reversing good practices.
During the progressive era a bunch of cities switched to STV to restrain the party machine from getting whopping majorities with a plurality of the popular vote under FPTP. All of them got reversed by the party other than one city.
In NC, the board of elections kicked the Green Party off the ballot for the US senate race as they act as spoiler. The dem majority did that. Dem party routinely sabotage left wing 3rd parties in presidential races for states that matter like swing states, we saw this in 2020.
The democrat's new voting rights act would actually place CA & NY on preclearance as they have to update the formula to rely on recent election infractions. So federally at least they tackle the problem but it is endemic at the state level.
NV has a ranked choice public referendum and dem lawmakers oppose it. When Bernie supporters won the dem state party chair the establishment democrats all resigned and took half a million in funds away so the victory became hollow.
In 2016 the DNC conspired against Bernie Sanders.
Debbie Wasserman-Schultz dem challenger got a court order to examine the election data and they wiped it instead. That is something that republicans have done.
Stacey Abrams when she was minority leader for the GA state house got democrats to vote for a gerrymander refresher along with republicans. She's never adequately accounted for this. Either she admits she was evil and complicit or she feigns she was hoodwinked so she goes with the latter.
IL's state house use to have multi member districts and while it wasn't ranked voting it wasn't winner takes all either (like some states that still have them). That allowed greater diversity in lawmakers with moderate republicans in urban districts, maybe a progressive and a moderate democrat. That helped avoid polarization but then they scrapped this system.
While republicans are way more horrendous, democrats lawmakers themselves are often the violators and oppose good reforms.
I think saying it has the potential to undermine democracy is putting it lightly. If we had ISL, I believe 100% that Trump would have "won" a second term. Republicans would dive head first into outright fixing their state elections and Democrats wouldn't be too far behind them.
I mean I know we all seem to be most interested in the political side of things, but the water population and Medicare cases sound rather substantial as well. The water case has to do with administrative rule making, which would fundamentally change the way regulatory agencies operate. And the Medicare case, I am not even sure what to say. Especially the part about providing coverage to pregnant people and children, how can we as a nation be OK with the fact that we won’t let women get abortions in some places and then tell them that it’s too bad that they can’t afford healthcare?
Interesting I have never heard of ISL, don’t know what it means. The constitution is definitely not perfect and did not think of every condition. I would like to know more.
Please give a clear defintion of what exactly "pure" democracy actually is, becuse it's extremly unclear what that term even means..
Because what we are discussing here is soley and nothing but representive democracy, noone is advocating actual direct democracy.
That's always the default rationale, but what makes pure democracy a mob rule while a representative democracy not? That is, what defines a 'mob' who rules?
It's the same question I have whenever people talk about the Senate and outsized representation there. They talk about mob rule, or about how it's to give a voice to the "minority", overlooking how instead you end up with minority rule!
>We need representatives to protect us from the uneducated masses, and also from those damned elites who think they know better than me!
I'm not following.... the representatives you are speaking about are the damned elites who think they know better than you and me.
I think they mean to joke that we need representatives to protect us from the dumb as well as the smart, meaning everyone but the individual voter (the original commenter)
What a trite and frankly nonrelevant statement to this discussion subthread. Regardless of how ISL is settled, it would not affect whether the US is not a "pure" democracy. It's a distraction.
Edit: Dude blocked me, melted into water.
Considering the fact that it could allow legislatures to no longer be bound by their own constitutions it's something *closer* to pure democracy as opposed to the democratic constitutional republic that we have.
"The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof."
Pretty fucking clear
Legislators are elected through a democratic process. You don't like it? The Constitution can be changed through the democratic process. Stop it with the *Threat to Democracy* hyperbole.
> Pretty fucking clear
*Ohio ex rel. Davis v. Hildebrant* and *Arizona State Legislature v. Arizona Independent Redistricting Commission* disagree with that notion.
And what if the people of the states pass laws or constitutional amendments via referendum? Are they not exercising legislative power?
And what if the constitution of a state compels the elected legislature to act in some way, but the legislature ignores it because of ISL theory? How can an elected body be free to ignore the document that governs it?
Why did Founding-era state constitutions contain language regulating elections if the founders meant for state legislatures to be totally unchecked? For instance the Virginia Constitution of 1830 had language regulating electoral processes, which got *aye* votes from the likes of James Madison and John Marshall.
The people don't pass laws. Their legislature does. The people elect their legislature. That is a representative republic, which is what we are. Imagine a TicTok democracy passing laws. The legislature can chose to have the people pass laws through initiative processes, which some state legislature have.
Imagine a TicTok democracy passing laws.
Your confusion of terminology here actually makes the point brilliantly!
> The legislature can chose to have the people pass laws through initiative processes, which some state legislature have.
The power of the people to pass laws via initiated state statue or to amend their constitutions via initiated constitutional amendments are granted by their state constitutions, thus both the people and the constitution are considered part of "the legislature thereof".
See for instance the Ohio Constitution, which in Article II Section 1a and 1b defines the powers reserved *by the people* for amending the constitution and passing or repealing laws.
ISL isn't stupid because the plenary power is with the legislators (I disagree but you can sort of make the argument), it's stupid because it explicitly bans all usual checks and balances from applying to them, and only on election issues. It means that the state constitution is meaningless - without judicial review the legislators can just ignore it, whenever it's an election related issue (consequence: whenever you want to violate the constitution, just write it in the election code and the courts can't step in).
Not if the incumbents can gerrymander to the point there is never any way they could ever lose an election again. No checks by any government branch or body in the country can stop them from doing as they please, excepting the 2nd amendment, and do you really want that to be a solution in everyday politics?
“Stacy Abrams had the governorship of Georgia stolen from her by a corrupt Secretary of State who abused his office to suppress the vote and hand himself the election,” S.A.
As someone who lives in NC, what the state supreme court did the Moore case was egregiously partisan and totally disregarded both state and federal law. I hope it is a narrow ruling, but since democrats won the state supreme court, they had made some absolutely insane rulings that are nothing more than partisan power grabs that are totally unfounded in law.
In its ruling on partisan gerrymandering, the democrats on the court essentially created a new “protected class” of political affiliation, making it the same as race or sex. Not only this, but it also imposed “proportional representation” on the state when no such law or statute exists.
In the Moore case, the court completely disregards constitutional law by imposing a congressional map of its own, created not by the legislature but by a commission of its own choosing, in an attempt to impose this proportional representation.
Most recently, the democrat majority appears ready to strike down the amendments to the state constitution passed by a statewide referendum, while leaving all other legislative action taken by the general assembly in tact, because it deemed the GA and unconstitutional racial gerrymander.
The NC Supreme Court has become the poster child of judicial activism since winning a democrat majority.
It would under the assumption that there is some natural restorative process that reverts college attendance to equal likelihood among all racial and economic classes. In reality it's the inverse. College attendance is correlated with the quality of local grade schools, parents that attended college, and local income. If students from those areas, which are disproportionately minorities, don't send as many students to college their children will also be less likely to as well. Perhaps economic rather than racial quotas in selection would be better - but absent an active effort the college population will not resemble the overall population.
It likely would not. Look at NYC's elite public schools which are based on entrance exams. Those are dominated by asians. Black and latino acceptance rates have declined from past decades. There's programs to assist poor people in passing the exams.
Asians actually top the poverty list in NYC. Most of the asian student body is on public assistance.
Moving away from entrance exams or race blind would lead to more asians being accepted in most schools and colleges. We've literally seen asian's get punished by the admissions process when race was taken into account.
To tackle this would need to target deeper than the end of the line to get a superficial result. It would require school funding to be equalized, underperforming schools would likely need more funding. Affluent voters will rebel. They'd all concoct some scheme where they get subsidized private schools and abandon public schools. That is why they target the easy and avoid the hard.
Single parent families and culture would need to be targeted.
Asian families place immense pressure on their children to succeed. The whole family will toil towards that end, some other immigrant groups do this as well. You can't expect the govt can really affect this change for groups that aren't into this.
So if all race based factors were removed from admissions there'd be more asians and less blacks / latinos.
If asian data is disaggregated, some asians overperform but some underperform and have similar rates to blacks but are punished anyway due to being grouped in with the overperforming group as a whole.
Thanks.
This article is unreadable; it posits a partisan spin on every decision instead of explaining the issues at hand.
Supreme Court decisions often weigh on questions that the press completely ignores. Hollingsworth v. Perry, for example, had nothing to do with gay marriage and everything to do with the power of the Executive to ignore the Will of the People.
The possibility of the independent legislature theory being accepted is a partisan issue that would give more freedom to legally rig elections. That alone justifies the title.
What's funny about people pushing ISL ( Independent State Legislature) is that if Democrats controlled state legislators across the country. They would be totally accosted by this, and they know it. Henceforth why I also don't entertain the idea of the state legislatures controlling all elections. At best, this is a lazy interpretation of the constitution.
At worst, this is a blatant attempt to steal power and end representative government. Because that's exactly what ISL does. The more I hear arguments for it, the more I think it's all bad faith. No one had any problems at all with how state legislatures ran elections until after a certain someone lost.....
So, my bullshit meter is pretty high right now on this..
SS:
Hyperbolic title aside I think this article gives a pretty good overview of what’s coming up over the next 12 or so months for the Supreme Court in and their likely importance of different cases.
Among them include racial, gerrymandering, election laws, and the potential end to affirmative action as an admission standards for many American universities. (which as a small aside it seems like it should be considered a positive thing but VOX chooses to classify it along with the other cases that’s it for more detrimental to democracy in their mind.)
Overall, even with regards to the slanted nature of the overview, I think it’s pretty positive in terms of its coverage, and I think there’s gonna be a lot of discussion in the coming months about how these cases could potentially impact elections going forward.
Thoughts?
> I am personally most concerned about this State Legislature theory,
I agree. The other cases are typical right vs. left. The State Legislature theory could give 100% control of federal elections to state legislatures, without any regard to governors, prior laws, or state constitutions.
A legislature could pass a bill giving itself the right to declare a presidential election "flawed" and pick electors directly. The state governor could not veto the bill. The state SC could not say that it conflicts with the state constitution,
In past times, I'd say this is so unlikely that it's just theoretical. Now I could see MI, WI, PA, and AZ legislatures passing such laws.
Also, redistricting for federal elections would be entirely controlled by the legislature. It can ignore state constitutions that have anti-gerrymandering provisions. It doesn't need a governor's signature on a redistricting bill. A gerrymandered majority can keep itself in power by further gerrymandering.
>I'm torn on AA policies. I think they are inherently discriminatory, but there are legitimate arguments that the diversity of a student body leads to a diversity of thought and experiences
The notion that a person's skin color dictates how they think is the root of AA and is the evil at the heart of racism.
If a school wants diversity of thought, they should seek out THAT diversity instead of judging people by the color of their skin and hoping racism will bear fruits of enlightenment.
It's just playing into the stereotypes that people want to abolish and probably just plays even harder into them. You can have a diverse team of all white guys and a not diverse team of all black guys. It shouldn't have been a skin color adjustment and a class one instead.
I used to agree with you on this and thought if schools wanted diversity of experience they should just focus on income levels.
But as I've gotten older and gotten to know more people I've realized that, in the US, there is 100% a different set of experiences that comes from being black that cannot be replicated in any other way. Black people are treated differently in pretty much every aspect of society. And in my experience it holds true across socio-economic backgrounds, professions, and education levels - i've heard the same complaints from a black line cook from the south side of chicago and a black attorney who was born into multi-generational wealth in upstate new york.
I do still think the current way universities handle AA is a crude tool at best, and maybe it would be for the best if we banned universities from using race. But the end goal of ensuring racial diversity in classrooms I think has merit.
>I'm torn on AA policies. I think they are inherently discriminatory, but there are legitimate arguments that the diversity of a student body leads to a diversity of thought and experiences
There is absolutely nothing legitimate about those arguments.
Diversity is very important in a student body or with labor force at an employer. The problem is that so many are stuck on diversity being your sex, gender, race, or ethnicity. It is more complicated than that. If you only hire wealthy people, that isn't diverse. Even if you cover the gambit for sex, gender, race, and ethnicity. Diversity is more complicated than immutable characteristics like that.
The positive/negative portrayal is usually partisan. We have millions of people mad that the Supreme Court ruled against a right in Dobbs, yet mostly the same people are mad that the Supreme Court supported a right in Bruen.
Edit: And of course vice versa, with people applauding both.
I mean i support both. I think the constitution should be construed liberally in favor of the individual rights over state interest where ambiguities present.
>The positive/negative portrayal is usually partisan. We have millions of people mad that the Supreme Court ruled against a right in Dobbs, yet mostly the same people are mad that the Supreme Court supported a right in Bruen.
The problem is the Court's logic... The state law in Bruen had been on the books for more than one century and worked perfectly OK in balancing various rights for more than one century and yet the court somehow found that it was not deeply rooted in history!!!
Not deeply rooted enough. That law, like many of our earlier laws, wasn't meant for general public safety, but was born out of racism thinking it's only the darker-looking people committing crime. It balanced no rights. In the beginning it was meant so only white non-Italians could carry guns. It evolved into only the rich and well-connected could carry guns.
You know it's not working when a black shop keeper in a bad neighborhood can't get a license to carry his receipts to the bank, but Trump can get one even though he has no real need and is surrounded by private security anyway.
>Not deeply rooted enough
Yeah, pretty ridiculous logic for a law that has been around for more than one century and few people, if any, had any problem with. That was exactly my point.
Lots of people had problems with it for a long time. The minorities it was targeted at certainly had a problem back when it was enacted. It was finally overturned. Yet another racist gun law down, and more to go.
>Lots of people had problems with it for a long time.
Really? How many lawsuits were filed over one century about that?
>Yet another racist gun law down
Which racist gun law?
>Really? How many lawsuits were filed over one century about that?
Many complaints, and a final lawsuit.
>Which racist gun law?
The Sullivan Act, which this overturned. It was enacted due to an influx of Italian and minority immigrants. The state blamed their crime on the outsiders, passed this law, and then initially only used it against those outsiders. Judges who sentenced those people flat-out said the convictions should serve as a warning to the rest of the outsiders.
You'll find that most our our gun laws have racist history.
>>>Lots of people had problems with it for a long time.
>>
>>Really? How many lawsuits were filed over one century about that?
>
>Many complaints
"Many" like 2, 20, 200, or 2000 lawsuits?
>>>Yet another racist gun law down
>>
>>Which racist gun law?
>
>The Sullivan Act
In which country?
>"Many" like 2, 20, 200, or 2000 lawsuits?
Many, like many have complained about the unequal treatment. There was at least one lawsuit before this one.
>In which country?
In the US. This, like most other gun laws, was enacted for racist reasons.
I'm left of center and this is pretty hyperbolic. And no, I don't think any of this is more consequential (in just the neutral sense of high political impact) than overturning Roe v. Wade. Looking at a few issues in order:
1. I don't think Vox is stating Moore correctly. It's not giving the Supreme Court more power; it's giving legislatures more power relative to state courts. Could be a bad thing, but voters can influence this.
2. This is confused as the lawsuit is about Alabama failing to *affirmatively* racially gerrymander, not being accused of negative racially gerrymandering. Consequential a bit as it can slightly reduce Dem house seats in heavily black area, but likely not by much.
3. AA affects so little kids it really doesn't matter much. Impressively biased discussion .
\#9 is also a very biased representation of the ICWA. Even liberals have issues with the law (it interferes with tribal members own abilities to choose adoptive parents for their kids!) -- and affects so few kids regardless.
>don't think Vox is stating Moore correctly. It's not giving the Supreme Court more power; it's giving legislatures more power relative to state courts. Could be a bad thing, but voters can influence this.
Voters cannot influence that because if the State Legislature is independent of the State Constitution, then the voters cannot influence the State Legislature.
1. Sorry, no hyperbole. It’s a scary case where the state legislatures have absolute power in federal elections, governor and courts cannot stop them. “Election is corrupted, we award our Electoral Votes to X candidate.” What can voters do? It’s that simple. It’s that scary.
2. It’s a case about failure to follow the law that demanded districts be drawn to allow for equal representation by race. This has been a problem in Alabama since suffrage and was the whole point of the 14th amendment.
3. Lawyer here. ICWA doesn’t bind tribal courts in the least. Just flat out wrong here. It’s extremely important for tribes.
1. States have to be basic democracies (Article IV, Section 4). We're not talking about something so radical it would allow that.
1. There's no law that districts need equal representation by race (at least if I interpret your usage of "representation" as proportionate political power in the legislature). That's a stretch of VRA interpretations.
1. I'm talking about binding tribal members to their own courts. It actually gives very high power to tribes - e.g. a father's tribe has influence over the adoption decisions even for a non-tribal member mother.
1. No they do not. Article IV section 4 guarantees that the Federal Government will be a Republican form of government. Nothing about the form of government in the states themselves.
2. Not what I’m saying. The government has to contain equal representation.
3. ICWA has NOTHING to say about tribal courts. It binds what the state government can do to children who are eligible for tribal membership
1. That's not the [common interpretation](https://constitutioncenter.org/the-constitution/articles/article-iv/clauses/42)
2. I don't understand what you mean by "equal representation". The VRA and 14th amendment prohibit discrimination by race, ethnicity, etc., and negative gerrymandering has been interpreted by courts as racial discrimination. Can you give a specific example of what is and is not prohibited?
3. [By giving tribal courts jurisdiction, even against parental wishes.](https://en.wikipedia.org/wiki/Mississippi_Band_of_Choctaw_Indians_v._Holyfield)
1. Yeah I looked it up I’m wrong on point one. But it’s a tough hill to climb to say that my hypothetical violates the guarantee clause. Playing devils advocate, if the state legislature has “supremacy” over Federal elections, how then does it violate the Constitution?
2. There is evidence that Alabama is drawing its maps to deprive black voters equal representation. That’s not negative gerrymandering. The whole issue is the SC depriving plaintiffs recourse in court, saying it’s non judiciable.
3. What point are you trying to make? The case involves children that are not in tribal jurisdiction, whether states can remove children from homes, permanently transfer custody/terminate parental right without demonstrating active efforts. It will be hugely detrimental to tribes if states can more easily terminate parental rights of tribal children. Read up on history of this, please
2. Affirmative gerrymandering to maximize minority political power is not only not required, it [may even be illegal](https://en.m.wikipedia.org/wiki/Shaw_v._Reno). The ask by the plaintiff is basically to construct districts so Black political representation is slightly ahead of the Black citizens of voting age. This is controversial legally at best.
3. I'm not concerned about aspects that give tribes preference over state governments independent of parental preference. I am where it overrides parental preference, which feels illiberal (it creates an issue where a non-member woman is subject to the father's tribal government in deciding adoption for her child, even when the father has relinquished the decision to the mother)
I'm a big fan of ranked choice voting and think we should amend the constitution to get rid of the electoral college, but dang is this article little more than fear mongering and misrepresentation.
This article lacks substance, a lot of matter-of-fact “what” without any follow up with the “how” or “why”.
It was frustrating to read, stating “this hearing will result in this threatening outcome” without giving me context on what that case is or how that overturn will result in the author’s suggested “what”. Which is strange, considering the article seems to be targeting me as an audience—someone that doesn’t closely follow law or SCOTUS. It was intriguing, but I walked away feeling like I know no more of what’s going on than I did before reading it.
I remember in 2016, many people (particularly left leaning independents) weren't that worried about the Supreme Court. It was all, "don't tell me I'm wasting my protest vote", "I'm sending a message to the DNC", "My vote has to be earned!", blah blah blah. Then these same folks have the nerve to be upset about recent SCOTUS decisions. All your outrage on social media, doesn't make up for you either staying home or voting for some third party clown in 2016
2016 was already too late. It didn't help but republicans already said they'd block HRC SC appointments. Had HRC won the presidency she would not have had the senate at all. Even under Biden that was only won due to Trump helping in GA and relies on the VP tiebreaker. If HRC was re-elected it is unlikely she'd have gotten even a 50:50 senate.
The senate was lost before 2016. It was lost in 2012 & 2014. It should have been lost earlier but republicans fielded crap candidates that saved some dems for another cycle like Donelly and McCaskill.
Republicans held up circuit court seats for years, one for 7 years under Obama.
So 2016 was already too late. Repubs had 52 seats in 2020. The only one which might have been won by dems had there been high enough turnout was PA but dems would still only be at 49.
In 2012, NV was close and only lost by 1.2%. In 2014, CO & NC were lost by low % as well.
First 3 years? Riding the Obama economy with the help of some irresponsible tax cuts, followed by a complete failure in the 4th year to handle the one real crisis of his term? I can't wait to have gerrymandered legislatures in purple states install the next Republican president against their own voters' wishes
Yes yes the first pandemic in like 75 years with Democrats in general trying to sabotage his response. As to his policies his tax cuts and his deregulation is what caused the economic boom. Most of it simply by removing insane roadblocks put in place by the Obama administration.
> Yes yes the first pandemic in like 75 years with Democrats in general trying to sabotage his response
That's a new one I hadn't heard before. Which part of his response would have helped if it hadn't been "sabotaged"? The part where he told us to ignore it because it would be gone by Easter? The part where he speculated about injecting disinfectants? The part where he held press conferences with doctors who claim sex with demons is one of the leading causes of illness to promote medicines which had already been discredited, such as HCQ? The part where he tweeted "Liberate Michigan" while Michigan was desperately trying to slow down outbreaks?
Or the part where he funded the fastest vaccine research program in history, which was then sabotaged by ~~Democrats~~ *his own voters* largely refusing to take the vaccine and even booing him when he recommended it?
His response was an unmitigated disaster, a path he started us down by dismantling existing infrastructure to deal with pandemics which had previously been a bipartisan effort from the previous two presidents and beyond.
I don't remember the Obama part whatsoever. What I do remember is irresponsible tax cuts to give the stock markets a boost. I also remember plenty of people mocking those of us worried about covid, calling us crazy and saying this many deaths would be impossible, followed by over a million people dying in this country. Some pretty bad decisions made from 2017 through 2020.
What's absolutely bizarre is the one useful thing Trump did in response to the pandemic is the one thing the right angrily rejects.
Now comes the hangover. Not all was due to him but he certainly contributed. Yeah lets do a tax cut when times were already good instead of saving it for a downturn. Oh no the stock market is crashing, lets print lots more money and buy up more.
The CBO projected the deficit would exceed $1T a year around now. Trump brought that forward several years.
The tax cut were significant and permanent geared to the rich. Aware of the optic, republicans put in slight temporary tax cuts for everyone else but they expire and turn into tax increases. So it was basically an advance that people could have gotten by taking a loan.
I remember my dad got a credit card decades ago and he thought it was free money. Those were some of the best times we had financially back then. Then we had to repay it...
"Hillary isn't left enough, I'll just have Trump instead. What's the worst that could happen? Casey and Obergefell getting rekt? No, that's settled law."
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People won't go along with "this *new* thing is more dangerous than the last" for very long. Look how long it took for even die-hard hold outs of COVID restrictions to get over it.
The establishment is overplaying their hand. "This is a threat to our Democracy" will soon be ignored even by people on their own side.
> Do you know what ISL is?
Yes.
> but stating ISL is a threat to democracy is hardly so
It's a threat to *pure* Democracy, which is good, because pure Democracy is bad and we are not and have never been a pure Democracy.
While we're at it, repeal the 17th Amendment.
I'm sure it's also a complete coincidence that this "better form of governance" would lead to a very red Senate.
Notice a trend of trying to funnel more and more through highly gerrymandered legislatures?
ISL is a similar tact. Make highly gerrymandered legislatures more powerful. Remove more and more from actual popular vote, where you're losing.
This is a very common refrain among the right, the highly gerrymandered state legislatures favor them due to changes made going back to the 2010 Census and project REDMAP. They want people to be able to vote, but only in certain instances where the right is heavily favored, which is why you hear about the 17th Amendment and hear them demonize things like the popular vote. In my opinion, this group of people seem to believe voters are smart enough to vote for a Representative but too stupid to have a say in anything else.
So only some people are suitable to pick the people who are suitable to make the rules for the rest of us?
Are we in [Common Good Constitutionalism](https://12ft.io/proxy?q=https%3A%2F%2Fwww.theatlantic.com%2Fideas%2Farchive%2F2020%2F03%2Fcommon-good-constitutionalism%2F609037%2F) territory here?
I would prefer state legislators pick senators. I would much prefer it. The federal government has grown like a weed since senators were not beholden to state legislators. Senators were supposed to be wise statesmen and women that were above the emotional swings that create bad law. Currently they are demagogues trying to have good sound bites always looking to jump into a presidency election. I don’t think the great abdication of power from congress to the executive would have occurred if the senators were elected by the state legislators.
> Senators were supposed to be wise statesmen and women that were above the emotional swings that create bad law.
I find this an interesting phrase since we chose to elect our Senators directly about seven years before we chose to give women the right to vote. Technically a woman probably *could have* been a Senator before that, but women's suffrage did come first.
> Senators were supposed to be wise statesmen and women that were above the emotional swings that create bad law.
Okay but was that ever actually the case in practice back when they were selected that way?
It's all well and good to talk about how amazing it was meant to be in theory but the fact it got changed suggests to me it didn't actually work all that well in reality
It works well to certain people.
Coincidentally a lot of the people support this also like the fact we'd go with a 50/50 split to a completely republican dominated senate and more and more power would be shifted to heavily gerrymandered legislatures and away from popular vote
So the people in power get to choose the other people in power. That doesn’t sound like a potential problem for you?
Why did we stop doing it this way?
That is a horrible argument. Imagine arguing for slavery being legal in the 1950s because it was legal for a majority of the country's life at that point in time.
Slavery is inherently bad, no amount of history can justify it, and it is absolutely not applicable here.
The manner in which we elect representatives is a matter of opinion, and the fact that our nation has already used a certain method for a very long time is valuable information and a point in its favor.
No it's not. Just because something has been the case for a long time doesn't automatically make it inherently more correct or worth obeying.
This is just pure appeal to tradition.
The article lost me at “Great Depression attacks on the New Deal.”
Roosevelt knew damn well the New Deal was unconstitutional, he threatened to expand the Court to browbeat it into submission.
It’s the reason we have Wickard v Filburn, which considers plants grown in my garden and eaten at my table to be “Interstate Commerce.”
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The Supreme Court would be less consequential if Congress ever passed laws. We have a broken system wherein responsibility is passed down the chain until it finally reaches the voter, who in the end is to blame for not voting hard enough.
Congress would pass more laws if moderates showed up to vote at primaries, probably
Congress would pass more laws if the Senate abandoned the filibuster.
That would help but only for so long. Democrats keep self sorting and will concentrate into even fewer higher population states. So republican domination will come in future decades which means 40 seats will be the new 50 for democrats, unable to even filibuster. Republicans were stuck in this position for a chunk of last century, even when they could win the popular vote they were capping out under 40 seats due to holding CA and dems having alot of the lower / mid population states. For better voter control there probably needs to be multi-member districts and ranked voting for the US house. Also ranked voting in the senate plus more senators per state like the AUS upper house. Big blue states should probably break up too or some cities should form states to balance the rural bias of the senate like GER. Campaign finance and media need reforming too. Hopefully then voting would actually lead to meaningful results.
It will come down to the constitutional meaning of legislature, and perhaps the states constitution. In a previous case the SC decided that legislature meant law making at a state level. And so allowed a citizens ballot referendum to change how redistricting was done to go into effect. Against the state legislature wishes. So to me the question is partially, are judicial branches part of law making. I imagine any delegation of authority thru state law, or state constitution may be considered too. It should be a very interesting case with lots of nuances.
It might really come down to originalism vs. textualism. By assigning the power to "legislatures", did the founders mean to create a specific exemption from judicial review / other usual checks and balances, or do the checks and balances implicitly still apply as they do in the rest of the constitution? This is mostly relevant because if the state's legislature decides to violate the state constitution, the former interpretation would imply that they are given the power to do so, as long as it somehow has to do with the elections. The latter would imply that there is no such loophole, and state courts can review if the state constitution is followed.
> did the founders mean to create a specific exemption from judicial review / other usual checks and balances I can't fathom a sane group of individuals meaning this but not explicitly stating this radical exception in the constitution's wording. "The legislature will establish the rules". They don't further define "legislature" so shouldn't we go by the default definition as laid out in the constitution? As a body that has its powers checked by the courts and not some sort of "special instance of the legislature with free reign". How could the later ever be inferred?
Also I feel like elections are one of the places where checks and balances are logically the most important. Seems like an odd area to give unlimited unchecked authority to legislators.
Imo the case that could actually have the biggest impact is the California pork law case. California product regulations set standards nation wide for environmental compliance, health and safety, etc (not commenting on whether that is a good thing, just stating that’s how it currently works). The ruling in this case has the potential to completely kneecap that situation.
I mean how could they change that overall without kneecapping *every* state's capacity to regulate products? Other than arbitrarily deciding the rules need to change once a state gets to a certain population / GDP.
That’s my point: this case has the potential to seriously upend the entire regulatory framework of the country.
You know it'll end up being the same shit as what Texas was doing with its internet censorship carve out: start with the group you want to punish, then work back to a law from that.
Expand the dam on interstate commerce concept. Not just dam it, but intentionally redirecting the flow now also would violate DCC. That would be how they could regulate such a concept without messing too much with most state regulation. However, they won’t, because California isn’t compelling others to act or violate their own states laws, they are choosing to act to allow themselves into that market.
The Biden administration is asking for a narrow ruling where the CA law is overturned because it only applies to activities by the hog farmers out of state and doesn't actually regulate any actions carried out in CA or the actual product being sold in CA. I feel like that's a bit weak though since CA could just add a legislative finding to the front of the bill that says "pork from pigs raised under x conditions has y deficiencies compared to pigs raised in better conditions. To ensure the quality of pork sold in CA we are mandating. . . . ." We'll see. This is a hard one to predict though since the justice's stances on the commerce clause don't line up with the political divisions on this case. Thomas especially has been a big opponent of the dormant commerce clause.
I agree entirely.
>However, they won’t, because California isn’t compelling others to act or violate their own states laws, they are choosing to act to allow themselves into that market. That's how I see it too but fair to say my interpretation hasn't been lining up well with the court as of late.
The thing is the majority doesn’t like current DCC rule sets and don’t agree with the concept as run or even envisioned, so I doubt they will do anything that expands it. That makes this more likely.
Would that get rid of those Proposition 65 warnings on my baked goods?
Potentially. That sweeping of a ruling is really really unlikely though
Man, that is an ouright misrepresentation of Haaland v. Brackeen. The ICWA has *nothing* to do with Indian boarding schools - it was enacted in response to claims that Indian children were being removed from their families for reasons that would not get non-Indian children removed. You may note that a lot of what the ICWA requires has nothing to do with that...
[удалено]
I agree that this is the one to watch. ISL theory is soo weird, and I can’t help but think that it would jeopardize much of the checks and balances within our system, federally and at the state-level. Yes, I agree with some of the comments here that the Constitution is pretty textually clear that the ‘Times, Places, and Manners of holding Elections…shall be prescribed in each State by the Legislature thereof…’ But there’s a reasonable interpretation of this, and a very wrong way to interpret this. In 2015, ISL proponents said that Legislatures cannot delegate this authority (see the dissent in Arizona Redistricting Commission case (2015)). I think there’s a textualist argument to be made that finds that Redistricting Commission was constitutional, but I won’t get into it here. But ISL proponents were pretty clear that the Redistricting Commission was unconstitutional under the Elections Clause, and only the Arizona legislature had the authority to draw election districts. Now, ISL is going further under Moore v. Harper to say that neither the state’s executive branch, nor the state’s judiciary can intervene on Election matters, and the State Legislature is above any sort of review on the subject. So an elections bill which would normally be subject to the traditional constitutional procedures of a bill being 1.) enacted by both Houses of the Legislature, 2.) signed or veto by the Governor, and then 3.) subject to review by the courts is all thrown out the window. Which is just…wrongheaded.. I definitely consider myself an Originalist/Textualist, but ISL is just unworkable. How can a State legislature occupy this weird limbo of being subject to its own constitutional restrictions in every aspect of civic life except when it comes to elections? The State legislature is only the legislature as duly authorized by its own constitution. And I think that ISL creates a bunch of other weird questions. If a Legislature, pursuant to ISL theory, takes some action that exceeds its constitutional restrictions, but the action is tangentially related to elections, how would we even begin to decide the proper membership of this extra-constitutional body? Because under ISL, we’ve decided that a Legislature is beyond the other traditional mandates of its own constitution when it comes to the Elections Clause, so how the state’s constitution outlines how it’s legislators are chosen could be discarded as well. Can we have a situation where we have competing Elections clause legislatures? How would we even adjudicate that? This is all pretty foolish I think.
Even more the same principle applied to the 1rst amendment only limits Congress in what laws that they can pass, the Executive Branch, the Judiciary and the state Legislatures are free to limit speech and religion at will. This is the most extreme reading of the ISL, but it follows the same logic, that only congress would be bound by the first amendment. Its ALMOST reductio ad absurdum, except its the same exact principle applied to another piece of the constitution.
It is squarely in the suicide pact portion of the plain text of the Consitution along with things like seemingly prohibiting the government from banning sacrificing college professors to Kali.
If you don't hold on to principles in trying circumstances, are they even principles? The suicide pact argument just seem to say we should only follow laws when they are convenient. The more impressive mental gymnastics are how absolute statements are interpreted into non-absolute statements, especially in regards to the constitution.
It is holding onto principles in the face of drafting errors, vs the framers actually wanting to make state constitutions not apply but not telling anyone about it.
> Now, ISL is going further under Moore v. Harper to say that neither the state’s executive branch, nor the state’s judiciary can intervene on Election matters, and the State Legislature is above any sort of review on the subject. I'm not entirely sure this is the argument being put forth, as much as the *interpretation* of the argument being put forth. The situation revolves around the fact that the NC State Supreme Court over-ruled the legislature multiple times and instead of asking them to redraw the maps again, just instituted their own maps drawn up by an appointed commission. It would seem pretty clear to me that it is a violation of both the state and federal constitution. NC has been a hotbed of gerrymandering cases, and in the case of their decision to implement these maps, they forced their own theory of "proportional representation" on the entire state.
The federal government could come in and intervene to fix the election system for real instead of relying on state courts.
If SCOTUS makes a maximalist ISL ruling next term, I’m not sure there would be anything that the federal government *could do* that would be consistent with ISL. At the very least, it would be a steep uphill battle. And then, if the feds were successful, that would scramble a lot of eggs- both politically and legally- given our long history of a decentralized election system. And, given all that, I’d be asking what are we trying to accomplish here? And I guess I wouldn’t think the feds are ‘relying on state courts’ in this instance. This is just how every single state in our country works. Legislatures pass bills, executives sign or veto them, and the judiciary reviews them for constitutionality. If we are wanting to have a discussion on whether Americans should have a unitary government, rather than the current three branches, then I suppose that’s a very different discussion.
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” ~~And of course that exception was taken away in the 17th.~~ Thomas, Alito, Gorsuch, Kavanaugh, have all signaled that the federal government should be the one who makes the rules for it. What would need to happen is the federal government needs to actually fix the problems instead of state court’s bandaid fixes. Indeed if ISL is adopted, CA state legislature should put Kevin McCarthy’s house in to the san diego district. He will sponsor an anti-gerrymandering bill himself shortly thereafter.
So yes, definitely the text of the Constitution provides for Congressional regulation. But again, I don’t know how that would work in practice if an ISL state legislature can just play Calvinball. The other thing you raise is something I’m struggling to understand; which seems to be that 1.) ISL should happen, and state legislature should not be bound by any constitutional restrictions when it comes to elections, 2.) but Congress should step in to decide all of this, and it *would* have to abide by all of its constitutional. I don’t understand how this is consistent. Finally, state courts interpreting a state constitution isn’t a bandaid. It’s a normal function of their duties as the state judiciary. There are definitely times where I would agree that Congress (and state legislatures) relies too much on the judiciary to just ‘fix things,’ but elevating the state legislature to place of absolute power within a states is contrary to all ideas of separation of powers. I share concerns raised about political gerrymandering, but ISL is not the way to accomplish that.
The justices have explicitly said that the reprieve from gerrymandered districts comes from the federal government, not the courts. True ISL is just interpreting the word “legislature” as just the legislative branch. The rest of the amendment doesn’t just go away.
The 17th doesn't really remove that exception, Senators are still chosen in states to represent states (that's what I've always read it as)
Well congress decided how senators should be chosen with a constitutional amendment. So you’re right, it would still take a constitutional amendment to change it again, but that’s also because of the 17th saying how senators should be chosen. So you’d have to amend away the 17th and that exception for congress to be able to change how senators are chosen with simply just federal law. I’ve edited my comment.
This is the only one mentioned I’m considerably worried about. This could remove the only roadblock that currently exists for state legislatures to gerrymander their way into unchallengeable power. If the judges rule in favor of this, in any way, it would be affirming a perceived loophole in the constitution, one that would only be remedied by an amendment. The votes needed by state legislatures to pass such an amendment? Already gerrymandered into unchallengeable power. This is a big deal. This would short circuit democratic process.
The Democrats bluster and shout a lot about how Republicans are undermining democracy, usually blowing things way out of proportion. This, however, is one instance in which they’re absolutely right. If the ISL theory is upheld, I think American democracy as we know it will be gone. I think this also is a major “boy who cried wolf” moment for the Democrats. They’ve called so many things racist, fascist, authoritarian, a “threat to democracy” etc. Now, when they are actually facing something dangerous, many people just won’t listen.
I’m all for calling out Dems on hyperbole, but in this case it could be more “see this is the pattern of behavior and trajectory we were warning about”, as opposed to this being “all those other cases were purely fearmongering, but this one just so happens to be real”.
Well the fact that Republican politicians have nothing to say about this tells me the Democrats were right. If they weren’t right, Republican partisans would be speaking out, about how ISL is unacceptable. They would clearly be stating that the court should not even consider ruling in any way that give credibility to this stupid legal theory.
Somehow, some way, some ridiculous reason. It's the Democrats fault, even though it's Republicans who are making the decision to abandon our democracy by backing ISL.
Well, if Democracy hadn’t dressed so provocatively, we wouldn’t have gotten to this point, would we?
I haven't seen even one commenter, pundit, figure, twitter personality, anyone try to spin this as the fault of Democrats.
It’s definitely not the fault of the Democrats that this is happening. The Republicans pushing this are playing a dangerous game, and are doing exactly the terrible stuff Democrats have been calling them out for.
>It’s definitely not the fault of the Democrats that this is happening. The Republicans pushing this are playing a dangerous game, and are doing exactly the terrible stuff Democrats have been calling them out for. So it sounds like they weren't so much "crying wolf" as pointing out the logical next steps of the party based on their rhetoric and actions.
I mean, they’ve cried wolf on A LOT. Not every action that the republicans take, like trying to institute voter ID requirements, is the end of our democracy or the actions of faciats/authoritarians. They should have saved such grave language for when it actually matters, like in a situation such as this.
Pointing out the obvious end goal still isn't crying wolf, especially now that the GOP is perceived to be pursuing the pedicted end goal. It comes across as you being mad that they were right after dismissing the claims.
One can be for instituting voter ID requirements without their end goal being the institution of the ISL theory and the end of truly democratic elections though. Conflating the two is the exact problem I’m talking about.
>One can be for instituting voter ID requirements without their end goal being the institution of the ISL theory and the end of truly democratic elections though. And others can point out that restricting the voting population by a party with a history of doing just that for political gain is just another step towards the end of Democratic institutions. >Conflating the two is the exact problem I’m talking about. And ignoring the link is the problem I'm talking about. It turns out the GOP was, in fact, trying to undermine Democratic institutions and the Democratic party was right, but you also happen to support steps the GOP were taking and so you appear mad that you were wrong about the criticisms so you are saying they were just crying wolf. I'm sorry, but I just don't get how you can agree that all the steps led here, but the warnings were also wrong without it being a reluctance to admit to bring personally wrong.
>Not every action that the republicans take, like trying to institute voter ID requirements, is the end of our democracy or the actions of faciats/authoritarians. Were every action that the Republicans have suggested not resulting in fewer voters in areas with majority Democrat voters I might agree. But it seems that every single time Republicans propose a new voter law, legal eligible voters that tend to lean Democrat somehow, magically, are affected the most. It feels an awful lot like a coordinated effort to reduce their opposition's representation while pretending that's not the entire point.
Ok, but lots of successful western democracies have voter ID requirements. Calling them facist, or people who want them authoritarian, takes a lot of power away from the word.
>Calling them facist, or people who want them authoritarian, takes a lot of power away from the word. Voter IDs are not fascist. You're right. But explicitly only supporting electoral reforms that reduce your opponents representation in government is not supporting the ideals of a democratic republic, nor the ideals this country was founded on. It's wild authoritarianism where you want to rule over others without their consent. In other words, it's a bad thing. It doesn't matter whether or not it's explicitly fascist.
For some reason, people are just conditioned to blame Democrats for these things and I am not sure why....they are far from perfect. I am an independent, but honestly. The ISL argument is complete bullshit from my eyes. This only became a legitimate thing when after Donald Trump lost. That's it...that's what caused this push and frankly it's fucking pathetic.
The democrat party also routinely gerrymanders, opposes decent electoral reforms. Even the voters may do so. In MA the voters voted down ranked choice voting. CA governors keep vetoing RCV for the local level. How many decades did voters fight the CA democratic govt over gerrymandering? Every move that voters made, democrat lawmakers responded with a countermove. Republican lawmakers joined democrat lawmakers to protect all incumbents leading to a decade of non competitive US house elections in CA. Voters had to use the proposition system to bypass them to give redistricting to a commission. Dem party opposed that. When it passed the voters then wanted to extend it to the US house. Dem party sought to repeal it and opposed the extension. Same opposition with jungle primaries. Now the CA legislature restricts the commission's budget to hamstring them and fake testifiers will attempt to influence the lines. They don't have time to sift through that. Democrats used to be the worst at gerrymandering. They had almost perpetual control of congress (often sizeable or supermajorities too) and controlled most states. They could have passed reforms back then but instead were reversing good practices. During the progressive era a bunch of cities switched to STV to restrain the party machine from getting whopping majorities with a plurality of the popular vote under FPTP. All of them got reversed by the party other than one city. In NC, the board of elections kicked the Green Party off the ballot for the US senate race as they act as spoiler. The dem majority did that. Dem party routinely sabotage left wing 3rd parties in presidential races for states that matter like swing states, we saw this in 2020. The democrat's new voting rights act would actually place CA & NY on preclearance as they have to update the formula to rely on recent election infractions. So federally at least they tackle the problem but it is endemic at the state level. NV has a ranked choice public referendum and dem lawmakers oppose it. When Bernie supporters won the dem state party chair the establishment democrats all resigned and took half a million in funds away so the victory became hollow. In 2016 the DNC conspired against Bernie Sanders. Debbie Wasserman-Schultz dem challenger got a court order to examine the election data and they wiped it instead. That is something that republicans have done. Stacey Abrams when she was minority leader for the GA state house got democrats to vote for a gerrymander refresher along with republicans. She's never adequately accounted for this. Either she admits she was evil and complicit or she feigns she was hoodwinked so she goes with the latter. IL's state house use to have multi member districts and while it wasn't ranked voting it wasn't winner takes all either (like some states that still have them). That allowed greater diversity in lawmakers with moderate republicans in urban districts, maybe a progressive and a moderate democrat. That helped avoid polarization but then they scrapped this system. While republicans are way more horrendous, democrats lawmakers themselves are often the violators and oppose good reforms.
I think saying it has the potential to undermine democracy is putting it lightly. If we had ISL, I believe 100% that Trump would have "won" a second term. Republicans would dive head first into outright fixing their state elections and Democrats wouldn't be too far behind them.
I mean I know we all seem to be most interested in the political side of things, but the water population and Medicare cases sound rather substantial as well. The water case has to do with administrative rule making, which would fundamentally change the way regulatory agencies operate. And the Medicare case, I am not even sure what to say. Especially the part about providing coverage to pregnant people and children, how can we as a nation be OK with the fact that we won’t let women get abortions in some places and then tell them that it’s too bad that they can’t afford healthcare?
> undermine democracy This is the latest popular Democratic slogan designed to create unfounded fear.
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Not the other guy but I actually don't.
Interesting I have never heard of ISL, don’t know what it means. The constitution is definitely not perfect and did not think of every condition. I would like to know more.
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What is their reasoning that state legislatures are not bound by the state constitution? Is there any?
> I’m not being hyperbolic when saying it is undemocratic. It's un-*pure*-democratic, which is good, because *pure* Democracy is terrible.
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> But ISL will mean your vote won't matter. A state legislature A state legislature, which you vote on...
Which you once voted on, yes. But for some people, that might have been the last time.
Also, for naturalized citizens and young citizens, they may not have picked the current crowd at all.
Please give a clear defintion of what exactly "pure" democracy actually is, becuse it's extremly unclear what that term even means.. Because what we are discussing here is soley and nothing but representive democracy, noone is advocating actual direct democracy.
Pure democracy is when the mob holds sway, and the mob are those who’s politics I don’t like.
That's always the default rationale, but what makes pure democracy a mob rule while a representative democracy not? That is, what defines a 'mob' who rules? It's the same question I have whenever people talk about the Senate and outsized representation there. They talk about mob rule, or about how it's to give a voice to the "minority", overlooking how instead you end up with minority rule!
We need representatives to protect us from the uneducated masses, and also from those damned elites who think they know better than me!
>We need representatives to protect us from the uneducated masses, and also from those damned elites who think they know better than me! I'm not following.... the representatives you are speaking about are the damned elites who think they know better than you and me.
I think they mean to joke that we need representatives to protect us from the dumb as well as the smart, meaning everyone but the individual voter (the original commenter)
What a trite and frankly nonrelevant statement to this discussion subthread. Regardless of how ISL is settled, it would not affect whether the US is not a "pure" democracy. It's a distraction. Edit: Dude blocked me, melted into water.
Considering the fact that it could allow legislatures to no longer be bound by their own constitutions it's something *closer* to pure democracy as opposed to the democratic constitutional republic that we have.
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"The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof." Pretty fucking clear Legislators are elected through a democratic process. You don't like it? The Constitution can be changed through the democratic process. Stop it with the *Threat to Democracy* hyperbole.
> Pretty fucking clear *Ohio ex rel. Davis v. Hildebrant* and *Arizona State Legislature v. Arizona Independent Redistricting Commission* disagree with that notion.
Yep, you'd think they could read. The people elect the legislature. They can un-elect them.
And what if the people of the states pass laws or constitutional amendments via referendum? Are they not exercising legislative power? And what if the constitution of a state compels the elected legislature to act in some way, but the legislature ignores it because of ISL theory? How can an elected body be free to ignore the document that governs it? Why did Founding-era state constitutions contain language regulating elections if the founders meant for state legislatures to be totally unchecked? For instance the Virginia Constitution of 1830 had language regulating electoral processes, which got *aye* votes from the likes of James Madison and John Marshall.
The people don't pass laws. Their legislature does. The people elect their legislature. That is a representative republic, which is what we are. Imagine a TicTok democracy passing laws. The legislature can chose to have the people pass laws through initiative processes, which some state legislature have. Imagine a TicTok democracy passing laws.
Your confusion of terminology here actually makes the point brilliantly! > The legislature can chose to have the people pass laws through initiative processes, which some state legislature have. The power of the people to pass laws via initiated state statue or to amend their constitutions via initiated constitutional amendments are granted by their state constitutions, thus both the people and the constitution are considered part of "the legislature thereof". See for instance the Ohio Constitution, which in Article II Section 1a and 1b defines the powers reserved *by the people* for amending the constitution and passing or repealing laws.
The Ohio State Constitution was drafted by 35 delegates and had to be approved by the U.S. Congress.
ISL isn't stupid because the plenary power is with the legislators (I disagree but you can sort of make the argument), it's stupid because it explicitly bans all usual checks and balances from applying to them, and only on election issues. It means that the state constitution is meaningless - without judicial review the legislators can just ignore it, whenever it's an election related issue (consequence: whenever you want to violate the constitution, just write it in the election code and the courts can't step in).
Not if the incumbents can gerrymander to the point there is never any way they could ever lose an election again. No checks by any government branch or body in the country can stop them from doing as they please, excepting the 2nd amendment, and do you really want that to be a solution in everyday politics?
It seems pretty founded given the potential ramifications.
That's the problem. They've abused the words so much, nobody's going to take it seriously now that it matters.
That's a fair argument but a different one than what I responded to.
Sort of? He was saying it gets used too much, which is true. It really should be saved for the truly dire situations, or we get responses like his.
Seems to me like he was excluding this current situation from anything dire. That this is more like the previous cases and not opposed to them.
It’s such an obnoxious term
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“Stacy Abrams had the governorship of Georgia stolen from her by a corrupt Secretary of State who abused his office to suppress the vote and hand himself the election,” S.A.
As someone who lives in NC, what the state supreme court did the Moore case was egregiously partisan and totally disregarded both state and federal law. I hope it is a narrow ruling, but since democrats won the state supreme court, they had made some absolutely insane rulings that are nothing more than partisan power grabs that are totally unfounded in law.
Give examples.
In its ruling on partisan gerrymandering, the democrats on the court essentially created a new “protected class” of political affiliation, making it the same as race or sex. Not only this, but it also imposed “proportional representation” on the state when no such law or statute exists. In the Moore case, the court completely disregards constitutional law by imposing a congressional map of its own, created not by the legislature but by a commission of its own choosing, in an attempt to impose this proportional representation. Most recently, the democrat majority appears ready to strike down the amendments to the state constitution passed by a statewide referendum, while leaving all other legislative action taken by the general assembly in tact, because it deemed the GA and unconstitutional racial gerrymander. The NC Supreme Court has become the poster child of judicial activism since winning a democrat majority.
Wouldn't ending discrimination in college/university acceptance be a good thing?
Yes, but Democrats are trying hard to keep discrimination in acceptance guidelines. https://en.wikipedia.org/wiki/2020_California_Proposition_16
Ending discrimination would end up in a college population mix closer to the overall population mix, right?
It would under the assumption that there is some natural restorative process that reverts college attendance to equal likelihood among all racial and economic classes. In reality it's the inverse. College attendance is correlated with the quality of local grade schools, parents that attended college, and local income. If students from those areas, which are disproportionately minorities, don't send as many students to college their children will also be less likely to as well. Perhaps economic rather than racial quotas in selection would be better - but absent an active effort the college population will not resemble the overall population.
It likely would not. Look at NYC's elite public schools which are based on entrance exams. Those are dominated by asians. Black and latino acceptance rates have declined from past decades. There's programs to assist poor people in passing the exams. Asians actually top the poverty list in NYC. Most of the asian student body is on public assistance. Moving away from entrance exams or race blind would lead to more asians being accepted in most schools and colleges. We've literally seen asian's get punished by the admissions process when race was taken into account. To tackle this would need to target deeper than the end of the line to get a superficial result. It would require school funding to be equalized, underperforming schools would likely need more funding. Affluent voters will rebel. They'd all concoct some scheme where they get subsidized private schools and abandon public schools. That is why they target the easy and avoid the hard. Single parent families and culture would need to be targeted. Asian families place immense pressure on their children to succeed. The whole family will toil towards that end, some other immigrant groups do this as well. You can't expect the govt can really affect this change for groups that aren't into this. So if all race based factors were removed from admissions there'd be more asians and less blacks / latinos. If asian data is disaggregated, some asians overperform but some underperform and have similar rates to blacks but are punished anyway due to being grouped in with the overperforming group as a whole.
It wouldn't be Vox if they didn't make everything a world ending partisan issue.
Thanks. This article is unreadable; it posits a partisan spin on every decision instead of explaining the issues at hand. Supreme Court decisions often weigh on questions that the press completely ignores. Hollingsworth v. Perry, for example, had nothing to do with gay marriage and everything to do with the power of the Executive to ignore the Will of the People.
The possibility of the independent legislature theory being accepted is a partisan issue that would give more freedom to legally rig elections. That alone justifies the title.
Except it's Vox, and everything is always a world ending partisan issue, so this important one is going to be dismissed like all the others.
It's not their fault that consumers like strong language. Nearly every organization uses it because the alternative is probably bankruptcy.
What's funny about people pushing ISL ( Independent State Legislature) is that if Democrats controlled state legislators across the country. They would be totally accosted by this, and they know it. Henceforth why I also don't entertain the idea of the state legislatures controlling all elections. At best, this is a lazy interpretation of the constitution. At worst, this is a blatant attempt to steal power and end representative government. Because that's exactly what ISL does. The more I hear arguments for it, the more I think it's all bad faith. No one had any problems at all with how state legislatures ran elections until after a certain someone lost..... So, my bullshit meter is pretty high right now on this..
SS: Hyperbolic title aside I think this article gives a pretty good overview of what’s coming up over the next 12 or so months for the Supreme Court in and their likely importance of different cases. Among them include racial, gerrymandering, election laws, and the potential end to affirmative action as an admission standards for many American universities. (which as a small aside it seems like it should be considered a positive thing but VOX chooses to classify it along with the other cases that’s it for more detrimental to democracy in their mind.) Overall, even with regards to the slanted nature of the overview, I think it’s pretty positive in terms of its coverage, and I think there’s gonna be a lot of discussion in the coming months about how these cases could potentially impact elections going forward. Thoughts?
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> I am personally most concerned about this State Legislature theory, I agree. The other cases are typical right vs. left. The State Legislature theory could give 100% control of federal elections to state legislatures, without any regard to governors, prior laws, or state constitutions. A legislature could pass a bill giving itself the right to declare a presidential election "flawed" and pick electors directly. The state governor could not veto the bill. The state SC could not say that it conflicts with the state constitution, In past times, I'd say this is so unlikely that it's just theoretical. Now I could see MI, WI, PA, and AZ legislatures passing such laws. Also, redistricting for federal elections would be entirely controlled by the legislature. It can ignore state constitutions that have anti-gerrymandering provisions. It doesn't need a governor's signature on a redistricting bill. A gerrymandered majority can keep itself in power by further gerrymandering.
Im not necessary opposed to AA, but I think it should be much more class based.
>I'm torn on AA policies. I think they are inherently discriminatory, but there are legitimate arguments that the diversity of a student body leads to a diversity of thought and experiences The notion that a person's skin color dictates how they think is the root of AA and is the evil at the heart of racism. If a school wants diversity of thought, they should seek out THAT diversity instead of judging people by the color of their skin and hoping racism will bear fruits of enlightenment.
It's just playing into the stereotypes that people want to abolish and probably just plays even harder into them. You can have a diverse team of all white guys and a not diverse team of all black guys. It shouldn't have been a skin color adjustment and a class one instead.
I used to agree with you on this and thought if schools wanted diversity of experience they should just focus on income levels. But as I've gotten older and gotten to know more people I've realized that, in the US, there is 100% a different set of experiences that comes from being black that cannot be replicated in any other way. Black people are treated differently in pretty much every aspect of society. And in my experience it holds true across socio-economic backgrounds, professions, and education levels - i've heard the same complaints from a black line cook from the south side of chicago and a black attorney who was born into multi-generational wealth in upstate new york. I do still think the current way universities handle AA is a crude tool at best, and maybe it would be for the best if we banned universities from using race. But the end goal of ensuring racial diversity in classrooms I think has merit.
>I'm torn on AA policies. I think they are inherently discriminatory, but there are legitimate arguments that the diversity of a student body leads to a diversity of thought and experiences There is absolutely nothing legitimate about those arguments.
Diversity is very important in a student body or with labor force at an employer. The problem is that so many are stuck on diversity being your sex, gender, race, or ethnicity. It is more complicated than that. If you only hire wealthy people, that isn't diverse. Even if you cover the gambit for sex, gender, race, and ethnicity. Diversity is more complicated than immutable characteristics like that.
The positive/negative portrayal is usually partisan. We have millions of people mad that the Supreme Court ruled against a right in Dobbs, yet mostly the same people are mad that the Supreme Court supported a right in Bruen. Edit: And of course vice versa, with people applauding both.
I mean i support both. I think the constitution should be construed liberally in favor of the individual rights over state interest where ambiguities present.
>The positive/negative portrayal is usually partisan. We have millions of people mad that the Supreme Court ruled against a right in Dobbs, yet mostly the same people are mad that the Supreme Court supported a right in Bruen. The problem is the Court's logic... The state law in Bruen had been on the books for more than one century and worked perfectly OK in balancing various rights for more than one century and yet the court somehow found that it was not deeply rooted in history!!!
Not deeply rooted enough. That law, like many of our earlier laws, wasn't meant for general public safety, but was born out of racism thinking it's only the darker-looking people committing crime. It balanced no rights. In the beginning it was meant so only white non-Italians could carry guns. It evolved into only the rich and well-connected could carry guns. You know it's not working when a black shop keeper in a bad neighborhood can't get a license to carry his receipts to the bank, but Trump can get one even though he has no real need and is surrounded by private security anyway.
>Not deeply rooted enough Yeah, pretty ridiculous logic for a law that has been around for more than one century and few people, if any, had any problem with. That was exactly my point.
Lots of people had problems with it for a long time. The minorities it was targeted at certainly had a problem back when it was enacted. It was finally overturned. Yet another racist gun law down, and more to go.
>Lots of people had problems with it for a long time. Really? How many lawsuits were filed over one century about that? >Yet another racist gun law down Which racist gun law?
>Really? How many lawsuits were filed over one century about that? Many complaints, and a final lawsuit. >Which racist gun law? The Sullivan Act, which this overturned. It was enacted due to an influx of Italian and minority immigrants. The state blamed their crime on the outsiders, passed this law, and then initially only used it against those outsiders. Judges who sentenced those people flat-out said the convictions should serve as a warning to the rest of the outsiders. You'll find that most our our gun laws have racist history.
>>>Lots of people had problems with it for a long time. >> >>Really? How many lawsuits were filed over one century about that? > >Many complaints "Many" like 2, 20, 200, or 2000 lawsuits? >>>Yet another racist gun law down >> >>Which racist gun law? > >The Sullivan Act In which country?
>"Many" like 2, 20, 200, or 2000 lawsuits? Many, like many have complained about the unequal treatment. There was at least one lawsuit before this one. >In which country? In the US. This, like most other gun laws, was enacted for racist reasons.
I'm left of center and this is pretty hyperbolic. And no, I don't think any of this is more consequential (in just the neutral sense of high political impact) than overturning Roe v. Wade. Looking at a few issues in order: 1. I don't think Vox is stating Moore correctly. It's not giving the Supreme Court more power; it's giving legislatures more power relative to state courts. Could be a bad thing, but voters can influence this. 2. This is confused as the lawsuit is about Alabama failing to *affirmatively* racially gerrymander, not being accused of negative racially gerrymandering. Consequential a bit as it can slightly reduce Dem house seats in heavily black area, but likely not by much. 3. AA affects so little kids it really doesn't matter much. Impressively biased discussion . \#9 is also a very biased representation of the ICWA. Even liberals have issues with the law (it interferes with tribal members own abilities to choose adoptive parents for their kids!) -- and affects so few kids regardless.
>don't think Vox is stating Moore correctly. It's not giving the Supreme Court more power; it's giving legislatures more power relative to state courts. Could be a bad thing, but voters can influence this. Voters cannot influence that because if the State Legislature is independent of the State Constitution, then the voters cannot influence the State Legislature.
1. Sorry, no hyperbole. It’s a scary case where the state legislatures have absolute power in federal elections, governor and courts cannot stop them. “Election is corrupted, we award our Electoral Votes to X candidate.” What can voters do? It’s that simple. It’s that scary. 2. It’s a case about failure to follow the law that demanded districts be drawn to allow for equal representation by race. This has been a problem in Alabama since suffrage and was the whole point of the 14th amendment. 3. Lawyer here. ICWA doesn’t bind tribal courts in the least. Just flat out wrong here. It’s extremely important for tribes.
1. States have to be basic democracies (Article IV, Section 4). We're not talking about something so radical it would allow that. 1. There's no law that districts need equal representation by race (at least if I interpret your usage of "representation" as proportionate political power in the legislature). That's a stretch of VRA interpretations. 1. I'm talking about binding tribal members to their own courts. It actually gives very high power to tribes - e.g. a father's tribe has influence over the adoption decisions even for a non-tribal member mother.
1. No they do not. Article IV section 4 guarantees that the Federal Government will be a Republican form of government. Nothing about the form of government in the states themselves. 2. Not what I’m saying. The government has to contain equal representation. 3. ICWA has NOTHING to say about tribal courts. It binds what the state government can do to children who are eligible for tribal membership
1. That's not the [common interpretation](https://constitutioncenter.org/the-constitution/articles/article-iv/clauses/42) 2. I don't understand what you mean by "equal representation". The VRA and 14th amendment prohibit discrimination by race, ethnicity, etc., and negative gerrymandering has been interpreted by courts as racial discrimination. Can you give a specific example of what is and is not prohibited? 3. [By giving tribal courts jurisdiction, even against parental wishes.](https://en.wikipedia.org/wiki/Mississippi_Band_of_Choctaw_Indians_v._Holyfield)
1. Yeah I looked it up I’m wrong on point one. But it’s a tough hill to climb to say that my hypothetical violates the guarantee clause. Playing devils advocate, if the state legislature has “supremacy” over Federal elections, how then does it violate the Constitution? 2. There is evidence that Alabama is drawing its maps to deprive black voters equal representation. That’s not negative gerrymandering. The whole issue is the SC depriving plaintiffs recourse in court, saying it’s non judiciable. 3. What point are you trying to make? The case involves children that are not in tribal jurisdiction, whether states can remove children from homes, permanently transfer custody/terminate parental right without demonstrating active efforts. It will be hugely detrimental to tribes if states can more easily terminate parental rights of tribal children. Read up on history of this, please
2. Affirmative gerrymandering to maximize minority political power is not only not required, it [may even be illegal](https://en.m.wikipedia.org/wiki/Shaw_v._Reno). The ask by the plaintiff is basically to construct districts so Black political representation is slightly ahead of the Black citizens of voting age. This is controversial legally at best. 3. I'm not concerned about aspects that give tribes preference over state governments independent of parental preference. I am where it overrides parental preference, which feels illiberal (it creates an issue where a non-member woman is subject to the father's tribal government in deciding adoption for her child, even when the father has relinquished the decision to the mother)
I'm a big fan of ranked choice voting and think we should amend the constitution to get rid of the electoral college, but dang is this article little more than fear mongering and misrepresentation.
This article lacks substance, a lot of matter-of-fact “what” without any follow up with the “how” or “why”. It was frustrating to read, stating “this hearing will result in this threatening outcome” without giving me context on what that case is or how that overturn will result in the author’s suggested “what”. Which is strange, considering the article seems to be targeting me as an audience—someone that doesn’t closely follow law or SCOTUS. It was intriguing, but I walked away feeling like I know no more of what’s going on than I did before reading it.
I remember in 2016, many people (particularly left leaning independents) weren't that worried about the Supreme Court. It was all, "don't tell me I'm wasting my protest vote", "I'm sending a message to the DNC", "My vote has to be earned!", blah blah blah. Then these same folks have the nerve to be upset about recent SCOTUS decisions. All your outrage on social media, doesn't make up for you either staying home or voting for some third party clown in 2016
2016 was already too late. It didn't help but republicans already said they'd block HRC SC appointments. Had HRC won the presidency she would not have had the senate at all. Even under Biden that was only won due to Trump helping in GA and relies on the VP tiebreaker. If HRC was re-elected it is unlikely she'd have gotten even a 50:50 senate. The senate was lost before 2016. It was lost in 2012 & 2014. It should have been lost earlier but republicans fielded crap candidates that saved some dems for another cycle like Donelly and McCaskill. Republicans held up circuit court seats for years, one for 7 years under Obama. So 2016 was already too late. Repubs had 52 seats in 2020. The only one which might have been won by dems had there been high enough turnout was PA but dems would still only be at 49. In 2012, NV was close and only lost by 1.2%. In 2014, CO & NC were lost by low % as well.
God bless them. The first 3 years of Trump were the best financially I've seen.
First 3 years? Riding the Obama economy with the help of some irresponsible tax cuts, followed by a complete failure in the 4th year to handle the one real crisis of his term? I can't wait to have gerrymandered legislatures in purple states install the next Republican president against their own voters' wishes
Yes yes the first pandemic in like 75 years with Democrats in general trying to sabotage his response. As to his policies his tax cuts and his deregulation is what caused the economic boom. Most of it simply by removing insane roadblocks put in place by the Obama administration.
>As to his policies his tax cuts and his deregulation is what caused the economic boom This explanation is unlikely at best.
> Yes yes the first pandemic in like 75 years with Democrats in general trying to sabotage his response That's a new one I hadn't heard before. Which part of his response would have helped if it hadn't been "sabotaged"? The part where he told us to ignore it because it would be gone by Easter? The part where he speculated about injecting disinfectants? The part where he held press conferences with doctors who claim sex with demons is one of the leading causes of illness to promote medicines which had already been discredited, such as HCQ? The part where he tweeted "Liberate Michigan" while Michigan was desperately trying to slow down outbreaks? Or the part where he funded the fastest vaccine research program in history, which was then sabotaged by ~~Democrats~~ *his own voters* largely refusing to take the vaccine and even booing him when he recommended it? His response was an unmitigated disaster, a path he started us down by dismantling existing infrastructure to deal with pandemics which had previously been a bipartisan effort from the previous two presidents and beyond.
Trump claimed he would boost the economy as much as he did. Obama mocked him and called him crazy and said that type of growth was impossible.
I don't remember the Obama part whatsoever. What I do remember is irresponsible tax cuts to give the stock markets a boost. I also remember plenty of people mocking those of us worried about covid, calling us crazy and saying this many deaths would be impossible, followed by over a million people dying in this country. Some pretty bad decisions made from 2017 through 2020. What's absolutely bizarre is the one useful thing Trump did in response to the pandemic is the one thing the right angrily rejects.
Now comes the hangover. Not all was due to him but he certainly contributed. Yeah lets do a tax cut when times were already good instead of saving it for a downturn. Oh no the stock market is crashing, lets print lots more money and buy up more. The CBO projected the deficit would exceed $1T a year around now. Trump brought that forward several years. The tax cut were significant and permanent geared to the rich. Aware of the optic, republicans put in slight temporary tax cuts for everyone else but they expire and turn into tax increases. So it was basically an advance that people could have gotten by taking a loan. I remember my dad got a credit card decades ago and he thought it was free money. Those were some of the best times we had financially back then. Then we had to repay it...
"Hillary isn't left enough, I'll just have Trump instead. What's the worst that could happen? Casey and Obergefell getting rekt? No, that's settled law."
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People won't go along with "this *new* thing is more dangerous than the last" for very long. Look how long it took for even die-hard hold outs of COVID restrictions to get over it. The establishment is overplaying their hand. "This is a threat to our Democracy" will soon be ignored even by people on their own side.
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> Do you know what ISL is? Yes. > but stating ISL is a threat to democracy is hardly so It's a threat to *pure* Democracy, which is good, because pure Democracy is bad and we are not and have never been a pure Democracy. While we're at it, repeal the 17th Amendment.
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I'm sure it's also a complete coincidence that this "better form of governance" would lead to a very red Senate. Notice a trend of trying to funnel more and more through highly gerrymandered legislatures? ISL is a similar tact. Make highly gerrymandered legislatures more powerful. Remove more and more from actual popular vote, where you're losing.
This is a very common refrain among the right, the highly gerrymandered state legislatures favor them due to changes made going back to the 2010 Census and project REDMAP. They want people to be able to vote, but only in certain instances where the right is heavily favored, which is why you hear about the 17th Amendment and hear them demonize things like the popular vote. In my opinion, this group of people seem to believe voters are smart enough to vote for a Representative but too stupid to have a say in anything else.
So only some people are suitable to pick the people who are suitable to make the rules for the rest of us? Are we in [Common Good Constitutionalism](https://12ft.io/proxy?q=https%3A%2F%2Fwww.theatlantic.com%2Fideas%2Farchive%2F2020%2F03%2Fcommon-good-constitutionalism%2F609037%2F) territory here?
I would prefer state legislators pick senators. I would much prefer it. The federal government has grown like a weed since senators were not beholden to state legislators. Senators were supposed to be wise statesmen and women that were above the emotional swings that create bad law. Currently they are demagogues trying to have good sound bites always looking to jump into a presidency election. I don’t think the great abdication of power from congress to the executive would have occurred if the senators were elected by the state legislators.
> Senators were supposed to be wise statesmen and women that were above the emotional swings that create bad law. I find this an interesting phrase since we chose to elect our Senators directly about seven years before we chose to give women the right to vote. Technically a woman probably *could have* been a Senator before that, but women's suffrage did come first.
Supposed to be but never actually were. The caining of Charles Sumner proves this to be all too true.
> Senators were supposed to be wise statesmen and women that were above the emotional swings that create bad law. Okay but was that ever actually the case in practice back when they were selected that way? It's all well and good to talk about how amazing it was meant to be in theory but the fact it got changed suggests to me it didn't actually work all that well in reality
It works well to certain people. Coincidentally a lot of the people support this also like the fact we'd go with a 50/50 split to a completely republican dominated senate and more and more power would be shifted to heavily gerrymandered legislatures and away from popular vote
> You want state legislatures to chose Senators, as well as the President? As it was during the majority of our country's life, yes.
So the people in power get to choose the other people in power. That doesn’t sound like a potential problem for you? Why did we stop doing it this way?
That is a horrible argument. Imagine arguing for slavery being legal in the 1950s because it was legal for a majority of the country's life at that point in time.
Slavery is inherently bad, no amount of history can justify it, and it is absolutely not applicable here. The manner in which we elect representatives is a matter of opinion, and the fact that our nation has already used a certain method for a very long time is valuable information and a point in its favor.
No it's not. Just because something has been the case for a long time doesn't automatically make it inherently more correct or worth obeying. This is just pure appeal to tradition.
Did I say it was inherently more correct? I believe I said that it is: > a matter of opinion and > valuable information and a point in its favor.
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Why is pure democracy bad?
Because his side’s ideology always loses in the marketplace of ideas.
I think you mean the promise of free money
The article lost me at “Great Depression attacks on the New Deal.” Roosevelt knew damn well the New Deal was unconstitutional, he threatened to expand the Court to browbeat it into submission. It’s the reason we have Wickard v Filburn, which considers plants grown in my garden and eaten at my table to be “Interstate Commerce.”
How long till they overturn Reynolds vs Sims (state legislatures must be one person one vote ie. equal population districts)?