Fears of the End of the Republic were forestalled until sometime between the next Trump rally and November 2024, as the Supreme Court decided today that state legislatures can’t just make up any old election laws — or results — they want to, without any oversight from state or even federal courts. In Moore v. Harper, the Court decided in a six to three decision — which should have been nine to zero — that the so-called “independent state legislature theory” is dumb and bogus, not to mention seriously fucked in the head. We paraphrase, but only slightly; Chief Justice John Roberts, writing for the majority, actually said the idea was “Insane in the membrane, insane in the brain.”
As many suspected following the oral arguments in December, the three dissenting justices were Clarence Thomas, Samuel Alito, and Neil Gorsuch, who probably belong on a terror watch list.
Previously:
Big Day At Supreme Court As It Hears Case Of ‘Democracy v. LOL’
Moore v Harper Oral Hearings: Democracy Maybe Only MOSTLY Dead!
NC Supreme Court Brings Back The Racist Gerrymandering Republicans Need To Win
The Independent State Legislature (ISL) Fan Fiction, as NYU Law Prof Melissa Murray likes to call it, starts with a thing that is real and then piles on, with no precedent or reason at all, a bunch of assumptions with virtually no actual backing in case law, US history, or common sense. The Constitution’s elections clause says simply that
The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.
According to the fabulists who made up the ISL foolishness a few decades ago, that clause means that no other state authority, including state courts, governors, or county elections officials, can challenge the legislature’s decisions on federal elections, even if they appear patently unfair.
The case involves an extreme gerrymander passed in 2021 by the heavily Republican North Carolina Legislature, which would give the vast majority of the state’s 14 congressional seats to Republicans. As the Brennan Center explains, the redistricting maps are “so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats.”
Because North Carolina’s constitution includes a “free elections clause” that prohibits such partisan gerrymandering, the state Supreme Court struck down the map in 2022, calling it an
“egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”
That prompted the North Carolina Lege to turn right around and pass a whole new extreme partisan gerrymander, and when it was challenged in state courts, Republicans went to the US Supreme Court to demand that it let the map stand, because independent state legislature, can’t you people even read?
In his decision today, Roberts wrote — actually this time — that several previous Supreme Court precedents had already made clear that state legislatures do not have “exclusive and independent authority when setting the rules governing federal elections,” and that the Elections Clause doesn’t invalidate the fundamental principal of judicial review as established in Marbury v. Madison. He also pointed out that “when legislatures make laws, they are bound by the provisions of the very documents that give them life,” i.e., state constitutions, and so obviously state courts have the power to rein in a state legislature in keeping with that state’s constitution. “You stupidheads,” Roberts did not add.
[NYT / Moore v. Harper]
While we’re at it, let’s also take a quick look at some other Supreme Court decisions we haven’t written about yet this term, just so we have ’em on record for you:
Sex Abuse Lawsuit Against Ohio State U Can Go Forward, you listening, Rep. Jordan?
On Monday, the Court decided not to hear an appeal of a lower court decision that allows more than 230 men to sue Ohio State over sexual abuse by the late Dr. Richard Strauss, who worked at Ohio State from 1978 to 1998. The university has apologized to those abused by Strauss, who killed himself in 2005, and has settled lawsuits with at least 296 victims, to the tune of over $60 million. But it tried to have the unsettled cases dismissed, claiming that the time limit to sue had expired. The AP explains:
The remaining plaintiffs have argued that they filed timely claims and that the time limit didn’t start running until the 2018 investigation into Strauss’ abuse made his conduct public. The men say that was when they first learned that the school had been aware of Strauss’ abuse and failed to protect them from him. Many also only realized then that they’d been victims of abuse since Strauss disguised his abuse as medical care, their lawyers said.
Among those named in the lawsuits is Rep. Jim Jordan, who was the assistant wrestling coach at Ohio State from 1986 to 1994 but insists he never knew what Strauss was up to. A spokesman for Jordan yesterday reiterated Jordan’s claim that he “never saw or heard of any abuse, and if he had, he would have dealt with it.”
If Alabama Has To Fix Its Racist District Maps, So Does Louisiana
In another short, unsigned decision, the Court on Monday slapped down an “emergency” attempt by Louisiana to block a lower court’s finding that Louisiana has to redraw its congressional district maps to create at least two districts where Black voters have a chance to elect a congressional member of their choice. The Supreme Court refusal to fast-track the case follows its decision earlier this month to toss out a similar racial gerrymander in Alabama, a decision that left many surprised that the Court hadn’t decided to stomp a little more life out of the Voting Rights Act.
The case now goes back to the notoriously rightwing Fifth Circuit Court of Appeals, which may end up affirming Louisiana’s contention that no, its racial gerrymander is very different and more constitutional than Alabama’s, so it’s entirely possible the case will still make it back to the Supremes next term anyway.
Hey Navajo Nation, You Get A Reservation. Water Rights Not So Much
In one of the more bizarre rulings in a while, the Court decided last week that the US government’s 1868 treaty with the Navajo Nation, which established the largest Native American reservation in parts of Arizona, New Mexico, and Utah, didn’t actually require the government to ensure that the tribe would have access to water. ProPublica tries to explain what seems inexplicable: After decades trying to negotiate with the state of Arizona, the Navajo Nation sued, in hopes of getting the Court to define what the tribe’s water rights were, and to order Arizona to stop delaying and allow the Navajo Nation reliable access to water.
ProPublica notes that while tribes have always had to negotiate for water with states, the federal government has also acted on tribes’ behalf by “helping account for how much is needed and available.” But when it came to intervening in the protracted negotiations between the tribe and the state, the Court, in a 5-4 decision, said nah, not our job.
Writing for the majority, Justice Brett Kavanaugh said the tribe’s treaties do not impose “a duty on the United States to take affirmative steps to secure water for the Tribe.”
The case has been dragging through the federal courts since 2003, eventually accumulating briefs from “four states, more than 100 tribes and 27 trade groups representing mining companies and other water-intensive industries.” So much for all that! Now it’s back to the Navajo Nation trying to get an agreement with Arizona, which is already fighting to get enough dwindling Colorado River water for its very important subdivisions and agriculture barons.
Navajo Nation President Buu Nygren said he hopes an agreement may be more likely with Arizona’s new governor Katie Hobbs, who promised while campaigning last year that she would work with tribes to resolve water claims.
Following the Court’s decision last week, Hobbs announced the appointment of four tribal officials — from the Navajo Nation, the Colorado River Indian Tribes, the Gila River Indian Community, and the Ak-Chin Indian Community — to the “Governor’s Water Policy Council,” which already includes Maria Dadgar, the executive director of the Inter Tribal Council of Arizona. So at least there’s a formal place at the water policy table, which is different from the water table (just a little hydrology joke there).
Justice Neil Gorsuch continued his advocacy for tribal rights with a scathing dissent in which he agreed with tribes that the 1868 treaty does so guarantee “enforceable water rights” that the federal government is obligated to define.
“The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation,” Gorsuch wrote. “At each turn, they have received the same answer: ‘Try again.’”
ProPublica also notes — drily, as is only appropriate — that if negotiations with Arizona go nowhere, the Navajo Nation’s “other option is continuing a water adjudication case in state court that began in 1978, involves 14,000 claims and has no end in sight.”
[ProPublica / Gov. Katie Hobbs / NBC News]
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