Moore v. Harper

[Boydstun]

Moore v. Harper seems to be the most important of decisions reached by the US Supreme Court in 2023.

(ROBERTS, C. J., delivered the opinion of the Court, in which SOTOMAYOR, KAGAN, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. KAVANAUGH, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion in which GORSUCH, J., joined, and in which ALITO, J., joined as to Part I.)

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. . . 

The question on the merits is whether the Elections Clause insulates state legislatures from review by state courts for compliance with state law.

Since early in our Nation’s history, courts have recognized their duty to evaluate the constitutionality of legislative acts. We announced our responsibility to review laws that are alleged to violate the Federal Constitution in Marbury v. Madison, proclaiming that “t is emphatically the province and duty of the judicial department to say what the law is.”(1803) Marbury confronted and rejected the argument that Congress may exceed constitutional limits on the exercise of its authority. “Certainly all those who have framed written constitutions,” we reasoned, “contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”

Marbury proclaimed our authority to invalidate laws that violate the Federal Constitution, but it did not fashion this concept out of whole cloth. Before the Constitutional Convention convened in the summer of 1787, a number of state courts had already moved “in isolated but important cases to impose restraints on what the legislatures were enacting as law.” G. Wood, The Creation of the American Republic 1776–1787, pp. 454–455 (1969). Although judicial review emerged cautiously, it matured throughout the founding era. These state court decisions provided a model for James Madison, Alexander Hamilton, and others who would later defend the principle of judicial review.

In the 1786 case Trevett v. Weeden, for example, lawyer James Varnum challenged a Rhode Island statute on the ground that it failed to provide the right to a jury trial. Although Rhode Island lacked a written constitution, Varnum argued that the State nevertheless had a constitution reflecting the basic historical rights of the English. And, he contended, the courts must honor “the principles of the constitution in preference to any acts of the General Assembly.” Varnum won, to the dismay of the State’s legislature, which replaced four of the five judges involved. His arguments were published as a pamphlet, which “may well have been the most prominent discussion of judicial review at the time of the Philadelphia Constitutional Convention.”

The North Carolina Supreme Court played its own part in establishing judicial review. In Bayard v. Singleton, the court considered the constitutionality of a 1785 Act by the State’s General Assembly that prevented British loyalists from challenging property seizures before a jury. The court held the Act “abrogated and without any effect,” for “it was clear” that the legislature could not pass an Act that “could by any means repeal or alter the constitution.” Otherwise, the legislature “would at the same instant of time, destroy their own existence as a Legislature, and dissolve the government thereby established.” James Iredell, who would later serve as an inaugural Justice of this Court, penned at the time an open letter “To the Public” expounding a robust concept of judicial review. (1846) “[T]he power of the Assembly,” he wrote, “is limited and defined by the constitution.” The legislature, after all, “is a creature of the constitution.”

North Carolina and Rhode Island did not stand alone. See, e.g., Holmes v. Walton (N. J. 1780), described in A. Scott, Holmes vs. Walton: The New Jersey Precedent, 4 Am. Hist. Rev. 456 (1899); State v. Parkhurst, 9 N. J. L. 427, 444 (1802) (citing Holmes as holding that a statute providing for a six-person jury was “unconstitutional”). All told, “State courts in at least seven states invalidated state or local laws under their State constitutions before 1787,” which “laid the foundation for judicial review.” J. Sutton, 51 Imperfect Solutions 13 (2018).

The Framers recognized state decisions exercising judicial review at the Constitutional Convention of 1787. On July 17, James Madison spoke in favor of a federal council of revision that could negate laws passed by the States. He lauded the Rhode Island judges “who refused to execute an unconstitutional law,” lamenting that the State’s legislature then “displaced” them to substitute others “who would be willing instruments of the wicked & arbitrary plans of their masters.” 2 Records of the Federal Convention of 1787, p. 28 (M. Farrand ed. 1911). A week later, Madison extolled as one of the key virtues of a constitutional system that “[a] law violating a constitution established by the people themselves, would be considered by the Judges as null & void.” Id., at 93. Elbridge Gerry, a delegate from Massachusetts, also spoke in favor of judicial review. (Known for drawing a contorted legislative district that looked like a salamander, Gerry later became the namesake for the “gerrymander.”) At the Convention, he noted that “n some States the Judges had [actually] set aside laws as being agst. the Constitution.” 1 id., at 97 (alteration in original by James Madison). Such judicial review, he noted, was met “with general approbation.” Ibid.

Writings in defense of the proposed Constitution echoed these comments. In the Federalist Papers, Alexander Hamilton maintained that “courts of justice” have the “duty . . . to declare all acts contrary to the manifest tenor of the Constitution void.” The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). “[T]his doctrine” of judicial review, he also wrote, was “equally applicable to most if not all the State governments.” Id., No. 81, at 482.

State cases, debates at the Convention, and writings defending the Constitution all advanced the concept of judicial review. And in the years immediately following ratification, courts grew assured of their power to void laws incompatible with constitutional provisions. See Treanor, 58 Stan. L. Rev., at 473, 497–498. The idea that courts may review legislative action was so “long and well established” by the time we decided Marbury in 1803 that Chief Justice Marshall referred to judicial review as “one of the fundamental principles of our society.”

We are asked to decide whether the Elections Clause carves out an exception to this basic principle. We hold that it does not. The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.

We first considered the interplay between state constitutional provisions and a state legislature’s exercise of authority under the Elections Clause in Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916). There, we examined the application to the Elections Clause of a provision of the Ohio Constitution permitting the State’s voters “to approve or disapprove by popular vote any law enacted by the General Assembly.” Id., at 566. In 1915, the Ohio General Assembly drew new congressional districts, which the State’s voters then rejected through such a popular referendum. Asked to disregard the referendum, the Ohio Supreme Court refused, explaining that the Elections Clause—while “conferring the power therein defined upon the various state legislatures”—did not preclude subjecting legislative Acts under the Clause to “a popular vote.” State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 163, 114 N. E. 55, 58 (1916).

We unanimously affirmed, rejecting as “plainly without substance” the contention that “to include the referendum within state legislative power for the purpose of apportionment is repugnant to §4 of Article I [the Elections Clause].” Hildebrant, 241 U. S., at 569; see also Hawke v. Smith, 253 U. S. 221, 230–231 (1920) (describing Hildebrant as holding that “the referendum provision of the state constitution when applied to a law redistricting the State with a view to representation in Congress was not unconstitutional”).

Smiley v. Holm, decided 16 years after Hildebrant, considered the effect of a Governor’s veto of a state redistricting plan. 285 U. S. 355, 361 (1932). Following the 15th decennial census in 1930, Minnesota lost one seat in its federal congressional delegation. The State’s legislature divided Minnesota’s then nine congressional districts in 1931 and sent its Act to the Governor for his approval. The Governor vetoed the plan pursuant to his authority under the State’s Constitution. But the Minnesota Secretary of State nevertheless began to implement the legislature’s map for upcoming elections. A citizen sued, contending that the legislature’s map “was a nullity in that, after the Governor’s veto, it was not repassed by the legislature as required by law.” Id., at 362. The Minnesota Supreme Court disagreed. In its view, “the authority so given by” the Elections Clause “is unrestricted, unlimited, and absolute.” State ex rel. Smiley v. Holm, 184 Minn. 228, 242, 238 N. W. 494, 501 (1931). The Elections Clause, it held, conferred upon the legislature “the exclusive right to redistrict” such that its actions were “beyond the reach of the judiciary.” Id., at 243, 238 N. W., at 501.

We unanimously reversed. A state legislature’s “exercise of . . . authority” under the Elections Clause, we held, “must be in accordance with the method which the State has prescribed for legislative enactments.” Smiley, 285 U. S., at 367. Nowhere in the Federal Constitution could we find “provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.” Id., at 368.

Smiley relied on founding-era provisions, constitutional structure, and historical practice, each of which we found persuasive. Two States at the time of the founding provided a veto power, restrictions that were “well known.” Ibid. (citing provisions in Massachusetts and New York). Subjecting state legislatures to such a limitation “was no more incongruous with the grant of legislative authority to regulate congressional elections than the fact that the Congress in Cite as: 600 U. S. ____ (2023) 17 Opinion of the Court making its regulations under the same provision would be subject to the veto power of the President.” Ibid.; see also Wesberry v. Sanders, 376 U. S. 1, 6 (1964) (Congress does not have “exclusive authority” under the Elections Clause, independent of other federal constitutional provisions). And “long and continuous interpretation” as evidenced by “the established practice in the states” provided further support. Smiley, 285 U. S., at 369. We noted that many state constitutions had adopted provisions allowing for executive vetoes, “and that the uniform practice . . . has been to provide for congressional districts by the enactment of statutes with the participation of the Governor wherever the state constitution provided for such participation.” Id., at 370.

This Court recently reinforced the teachings of Hildebrant and Smiley in a case considering the constitutionality of an Arizona ballot initiative. Voters “amended Arizona’s Constitution to remove redistricting authority from the Arizona Legislature and vest that authority in an independent commission.” Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, 792 (2015). The Arizona Legislature challenged a congressional map adopted by the commission, arguing that the Elections “Clause precludes resort to an independent commission . . . to accomplish redistricting.” Ibid. A divided Court rejected that argument. The majority reasoned that dictionaries of “the founding era . . . capaciously define[d] the word ‘legislature,’” id., at 813–814, and concluded that the people of Arizona retained the authority to create “an alternative legislative process” by vesting the lawmaking power of redistricting in an independent commission, id., at 817. The Court ruled, in short, that although the Elections Clause expressly refers to the “Legislature,” it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power. States, the Court explained, “retain autonomy to establish their own governmental processes.” Id., at 816

The significant point for present purposes is that the Court in Arizona State Legislature recognized that whatever authority was responsible for redistricting, that entity remained subject to constraints set forth in the State Constitution. The Court embraced the core principle espoused in Hildebrant and Smiley “that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.” 576 U. S., at 808; see also id., at 840–841 (ROBERTS, C. J., dissenting) (recognizing that Hildebrant and Smiley support the imposition of “some constraints on the legislature”). The Court dismissed the argument that the Elections Clause divests state constitutions of the power to enforce checks against the exercise of legislative power: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” 576 U. S., at 817–818 (majority opinion).

The reasoning we unanimously embraced in Smiley commands our continued respect: A state legislature may not “create congressional districts independently of ” requirements imposed “by the state constitution with respect to the enactment of laws.” 285 U. S., at 373.

. . .

Although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein. “State courts are the appropriate tribunals . . . for the decision of questions arising under their local law, whether statutory or otherwise.” Murdock v. Memphis, 20 Wall. 590, 626 (1875). At the same time, the Elections Clause expressly vests power to carry out its provisions in “the Legislature” Cite as: 600 U. S. ____ (2023) 27 Opinion of the Court of each State, a deliberate choice that this Court must respect. As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.

State law, for example, “is one important source” for defining property rights. Tyler v. Hennepin County, 598 U. S. ___, ___ (2023) (slip op., at 5); see also Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972) (property rights “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law”). At the same time, the Federal Constitution provides that “private property” shall not “be taken for public use, without just compensation.” Amdt. 5. As a result, States “may not sidestep the Takings Clause by disavowing traditional property interests.” Phillips v. Washington Legal Foundation, 524 U. S. 156, 164 (1998); see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980) (holding that States may not, “by ipse dixit, . . . transform private property into public property without compensation”).

A similar principle applies with respect to the Contracts Clause, which provides that “[n]o state shall . . . pass any . . . Law impairing the Obligation of Contracts.” Art. I, §10, cl. 1. In that context “we accord respectful consideration and great weight to the views of the State’s highest court.” Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 100 (1938). Still, “in order that the constitutional mandate may not become a dead letter, we are bound to decide for ourselves whether a contract was made.” Ibid.; see also General Motors Corp. v. Romein, 503 U. S. 181, 187 (1992). 

Cases raising the question whether adequate and independent grounds exist to support a state court judgment involve a similar inquiry. We have in those cases considered whether a state court opinion below adopted novel reasoning to stifle the “vindication in state courts of . . . federal 28 MOORE v. HARPER Opinion of the Court constitutional rights.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 457–458 (1958).

Running through each of these examples is the concern that state courts might read state law in such a manner as to circumvent federal constitutional provisions. Therefore, although mindful of the general rule of accepting state court interpretations of state law, we have tempered such deference when required by our duty to safeguard limits imposed by the Federal Constitution

Members of this Court last discussed the outer bounds of state court review in the present context in Bush v. Gore, 531 U. S. 98 (2000) (per curiam). Our decision in that case turned on an application of the Equal Protection Clause of the Fourteenth Amendment. Id., at 104–105. In separate writings, several Justices addressed whether Florida’s Supreme Court, in construing provisions of Florida statutory law, exceeded the bounds of ordinary judicial review to an extent that its interpretation violated the Electors Clause.

Chief Justice Rehnquist, joined in a concurring opinion by JUSTICE THOMAS and Justice Scalia, acknowledged the usual deference we afford state court interpretations of state law, but noted “areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law.” Id., at 114. He declined to give effect to interpretations of Florida election laws by the Florida Supreme Court that “impermissibly distorted them beyond what a fair reading required.” Id., at 115. Justice Souter, for his part, considered whether a state court interpretation “transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the ‘legislature’ within the meaning of Article II.” Id., at 133 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).

We do not adopt these or any other test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific. We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.

. . .

State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.

 

Edited August 10, 2023 by Boydstun

[Boydstun]

I don't know how to fix the strike-through text in the quotation of the Opinion in the preceding post.

Moore v. Harper – What was at stake (run-up )

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If the court sides with state lawmakers in Moore, the result could have far-reaching impacts. State courts, governors, and redistricting commissions could also lose their power to invalidate, veto, or draw congressional maps. And the effects could apply well beyond gerrymandering, including dramatically changing how federal elections are conducted and giving state legislatures broad, unchecked power to set otherwise-illegal election rules. This theory must be rejected regardless of any short-term partisan implications — remember, state courts also struck down partisan gerrymanders this year in blue states as well as red ones. In the end, it is our democracy that stands to lose if the power to set election rules is unconstrained by the rule of law and constitutional checks and balances.

If the Supreme Court adopts the North Carolina legislators’ proposed rule in Moore, it will make it even easier for state legislatures to suppress the vote and subvert election results, and it will give both political parties the green light to draw gerrymandered election districts. Adopting the legislators’ rule would also require the court to turn its back on principles ostensibly favored by its current majority, like original meaning and federalism, which stand against the legislators’ radical and disruptive legal theory.

Moore is an opportunity for the court to reject that radicalism, and to reaffirm the common-sense rule that has been in place since the Constitution was ratified: State legislatures always act subject to the state constitutions that charter them and define their powers. Nothing less than that basic principle of American constitutional government is at stake.

 

 

Edited August 10, 2023 by Boydstun

[tadmjones]

Did several states’ legislative houses change election procedures that some have challenged as unconstitutional and against common sense as well, or were/are those arguments only hyperbole?

Edited February 3 by tadmjones

[Boydstun]

Tad, I've gathered that when hyperbolic arguments are posed in briefs or court opinions or oral questions from the appellate bench occur it is by way of thinking through logical implications of a position. Such was a question was recently posed from an appellate judge to a Trump attorney who was arguing that a former President should be subsequently immune to all criminal prosecution. Hyperbolically and hypothetically, could President Biden order the killing of his political opponents and be immune to criminal prosecution for the rest of Biden's life? (The attorney waved his hands that the present case is somehow qualifiable so that it can be set off from such a scenario. Without the differentiating qualifications in hand, the attorney looked to be evading the question; it's my impression that for your case, you should not fail to actually answer a question from the bench.)

Back to the case Moore v. Harper.

Elections Clause of US Constitution

Holding in Moore v. Harper at US Supreme Court: (re)affirmed for the plantiffs.

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Several groups of plaintiffs challenged North Carolina’s congressional districting map as an impermissible partisan gerrymander. The plaintiffs brought claims under North Carolina’s Constitution, which provides that “[a]ll elections shall be free.” Art. I, §10. Relying on that provision, as well as the State Constitution’s equal protection, free speech, and free assembly clauses, the North Carolina Supreme Court found in favor of the plaintiffs and struck down the legislature’s map. The Court concluded that North Carolina’s Legislature deliberately drew the State’s congressional map to favor Republican candidates. In drawing the State’s congressional map, North Carolina’s Legislature exercised authority under the Elections Clause of the Federal Constitution, which expressly requires “the Legislature” of each State to prescribe “[t]he Times, Places and Manner of ” federal elections. Art. I, §4, cl. 1. We decide today whether that Clause vests state legislatures with authority to set rules governing federal elections free from restrictions imposed under state law.

. . .

The precedents of this Court have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution. The argument to the contrary does not account for the Framers’ understanding that when legislatures make laws, they are bound by the provisions of the very documents that give them life. Thus, when a state legislature carries out its federal constitutional power to prescribe rules regulating federal elections, it acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the state legislature’s exercise of power.

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Historical practice confirms that state legislatures remain bound by state constitutional restraints when exercising authority under the Elections Clause. Two state constitutional provisions adopted shortly after the founding expressly constrained state legislative action under the Elections Clause. See Del. Const., Art. VIII, §2 (1792); Md. Const., Art. XIV (1810). In addition, multiple state constitutions at the time of the founding regulated the “manner” of federal elections by requiring that “elections shall be by ballot.” See, e.g., Ga. Const., Art. IV, §2. Moreover, the Articles of Confederation—from which the Framers borrowed—provided that “delegates shall be annually appointed in such manner as the legislature of each state shall direct.” Art. V. Around the time the Articles were adopted, multiple States regulated the appointment of delegates, suggesting that the Framers did not understand that language to insulate state legislative action from state constitutional provisions.

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Edited February 4 by Boydstun

[chuff]

At the risk of oversimplifying, it appears this decision acknowledges the legal principle that the States have final authority over their own election laws (as they do over any other state laws that do not conflict with the U.S. Constitution, as well as over the interpretations of their own constitutions).

[Boydstun]

9 hours ago, chuff said:

At the risk of oversimplifying, it appears this decision acknowledges the legal principle that the States have final authority over their own election laws (as they do over any other state laws that do not conflict with the U.S. Constitution, as well as over the interpretations of their own constitutions).

And that any such law cannot be exempt from the judicial review, state or federal, of state law for federal elections, which was being attempted in NC (so that the state legislature could dictate election law with no constraints from other divisions of government). Moore v. Harper has lain to rest the Independent State Legislature Theory (ISL) in election law.

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The Claremont Institute, a conservative think tank, takes an extreme position on the ISL theory in its brief. The document was written and submitted by John Eastman, Trump’s legal advisor and a central figure in the attempts to overturn the results of the 2020 election. In fact, Eastman used the most radical version of the ISL theory to advance his argument before Jan. 6, 2021: In a memo, he spelled out a frightening, unconstitutional plan of how then-Vice President Mike Pence could declare Trump the winner of the Electoral College and the presidency. 

Unsurprisingly, given its author, Eastman’s amicus brief in support of Moore states that the power conferred to state legislatures by not only the Elections Clause, but also the Presidential Electors Clause is “plenary,” meaning absolute. The ISL theory is inconsistent with cases from the past century, the brief writes, so the suggested solution is to simply overturn three decisions. . . . –among the amicus briefs

 

Edited February 6 by Boydstun

[Boydstun]

Let's make sure the point in that last quote is not lost: 

"The Claremont Institute, a conservative think tank, takes an extreme position on the ISL theory in its brief. The document was written and submitted by John Eastman, Trump’s legal advisor and a central figure in the attempts to overturn the results of the 2020 election. In fact, Eastman used the most radical version of the ISL theory to advance his argument before Jan. 6, 2021: In a memo, he spelled out a frightening, unconstitutional plan of how then-Vice President Mike Pence could declare Trump the winner of the Electoral College and the presidency. 

Unsurprisingly, given its author, Eastman’s amicus brief in support of Moore states that the power conferred to state legislatures by not only the Elections Clause, but also the Presidential Electors Clause is “plenary,” meaning absolute. The ISL theory is inconsistent with cases from the past century, the brief writes, so the suggested solution is to simply overturn three decisions. . . ." –among the amicus briefs 

This brief was on the losing side (the Moore side) of the decision (6-3) of the US Supreme Court.

Afoot now is the campaign by a good many Republicans for defying this ruling at the State level (defy any court) and any other rulings on election law by the Court that is unfavorable (in these Republicans' estimate) to their candidates. It's as though many Republicans are assuming great losses ahead for their candidates if elections continue to be decided by eligible voting citizens. So they are putting about ways of circumventing that anticipated result by claiming as legal what is decidedly illegal under US law.

(That portion of Republicans are united in their rationale [a lie, not merely a falsehood, for they are not really that stupid] that any elections not in their favor must have been fraudulent. There is no Confederate Army, and there is not going to be any warring between US military and National Guard or within the latter. Those troops are overwhelmingly genuinely committed to the survival of our constitutional democratic republic, just as the majority of the present US Supreme Court.)

Edited February 6 by Boydstun

[tadmjones]

"PRIVILEGED AND CONFIDENTIAL January 6 scenario 7 states have transmitted dual slates of electors to the President of the Senate. The 12th Amendment merely provides that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch. The Electoral Count Act, which is likely unconstitutional, provides: If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. This is the piece that we believe is unconstitutional. It allows the two houses, “acting separately,” to decide the question, whereas the 12th Amendment provides only for a joint session. And if there is disagreement, under the Act the slate certified by the “executive” of the state is to be counted, regardless of the evidence that exists regarding the election, and regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures. So here’s the scenario we propose:

1. VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).

2. When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act.

3. At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment -- is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

4. Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.

5. One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.

6. The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position -- that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind."

 

 Stephen

As a layman I believe the proposal can be described as very or even extremely 'aggressive' as legal moves, but nothing jumps out as 'unconstitutional' to this layman's eye, where do you see it?

[Boydstun]

Tad, from whom is this quoted "Privileged and Confidential" opinion? Was it composed after the decision in Moore v. Harper? I gather it was not, since it refers to VP Pence in the present tense. I defer to the Supreme Court on the constitutionality of the quoted scheme. What they imply about such a scheme might be gleaned from full study of the majority opinion in Moore v. Harper, which I'll leave to you, as I'm smelling the blood in a really important article on the Analytic-Synthetic distinction I'm bringing to conclusion at this time. I'll likely post it in Facebook (because they are generous with size of photos there) and link to it from OO. 

This is Black History month, and I'd like to contribute a bit of it that is related to what NC was trying to do, which came to be struck down in Moore v. Harper. This did not involve gerrymander by the state legislature, but its restrictions on voter eligibility. The Oklahoma Democrats, a bigoted Party in power there and then, figured Black voters would vote Republican.

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When Oklahoma joined the Union in 1907, its constitution allowed all men to vote, regardless of race. In 1910 it introduced a “grandfather clause” through an amendment to the [State] constitution. This clause provided an exemption to literacy requirements for direct lineal descendants of citizens who had been legally able to vote on or before January 1, 1866. In other words, anyone whose father or grandfather was white. The Supreme Court ruled that Oklahoma’s grandfather clause was unconstitutional in ‘Guinn’ v ‘United States’. Oklahoma legislators subsequently passed a law that required everyone except those who had voted in 1914 to register within an 11-day period or be perpetually disenfranchised (deprived of the right to vote). The Supreme Court struck down this law as well, but not until 23 years later. –Records of Rights

 

Edited February 6 by Boydstun

[tadmjones]

In the mundane, corrupted , and pragmatic real world and current moment SCOTUS implying anything about a memo becoming an act of insurrection is/would be what is in reality a politically motivated DOJ action, not a principled act of ensuring constitutional integrity. In the same manner that SCOTUS decisions containing gerrymandering in the modern day with a two decade struggle to ensure ‘the franchise’ to black males immediately following the Civil War. The justice department was about three decades ‘old’ then, the country/culture was different then and so was the government, both the men and the laws have changed.