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The Freakout Over The Elections Clause Continues After SCOTUS Oral Argument

The Freakout Over The Elections Clause Continues After SCOTUS Oral Argument

What don’t you understand about “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…”?

Today was oral argument at the U.S. Supreme Court in Moore v. Harper, a case considering the role of state legislatures as opposed to state courts in deciding how federal elections are conducted. The Elections Clause of the Constitution (Article I, Section 4) seems to answer the question:

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.” [emphasis added]

Simple, right?

Yet Democrats are absolutely freaking out over the possibility the so-called “independent state legislature theory” would prevail at SCOTUS. We covered the early stages of the freakout in early July 2022, when SCOTUS agreed to hear the case, “The Nightmare Scenario SCOTUS is Plotting For the 2024 Election Takeover” – Fear Mongering Over Upcoming Moore v. Harper Case:

Here we go again. The End of Democracy. You know, like when the Supreme Court ruled that abortion rights should be determined through the state electoral process, not by federal courts. And when it declared that the EPA could exercise powers over major issues only if the duly-elected Congress clearly enabled such action in legislation. Such a threat!

Here we go again. The politicians and media that brought you those End of Democracy narratives, and the Russia Collusion hoax, have a new demon to spend the next several months foaming about: Moore v. Harper, which the Supreme Court recently agreed to hear next term….

Petition for a Writ of Certiorari, asking the court to hear the case, was filed in due course. On June 30, 2022, the Court granted the Petition, and agreed to hear the case, with the following Question Presented:

Whether a State’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” U.S. CONST. art. I, § 4, cl. 1, and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

So that’s what all the fear mongering is about. The fear is the the Supreme Court may interpret the Elections Clause according to its plain terms.

Yet the proposition is dismissed by Democrats as fringe and extreme MAGA Election Theory.

I listened to the recording of the oral argument. Frequently oral arguments help in understanding a case, but not this time. At least not for me.

So much of the questioning and arguments seemed circular. But the extensive discussion of and questioning about SCOTUS precedent made pretty clear the approach at issue is not fringe. The attorney representing the appellants seemed to get bogged down in arguing a distinction between procedure and substance supported reversing what the NC court did, but it didn’t go well for him.

I make no predictions as to outcome, but I do note the way the Question Presented (quoted in full above) was presented seems to suggest a majority of the court is inclided to overrule what the North Carolina Supreme Court did here, which was to rewrite election redistricting based on vague standards:

“…. replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.”

Amy Howe at ScotusBlog suggests the Court seems unlikely to adopt a “broad” approch:

The Supreme Court on Wednesday signaled that it may not be ready to adopt a sweeping interpretation of the Constitution, known as the “independent state legislature” theory, that would give state legislatures broad power to regulate federal elections without interference from state courts. Although some justices appeared receptive to that theory during nearly three hours of argument, it was not clear that there was a majority to endorse it, even as other justices focused on a narrower version of the theory that would preserve at least some role for state courts in enforcing state laws or the state constitution….

Ian Millhiser at Vox puts his hopes on ACB:

Trump-appointed Justice Amy Coney Barrett tossed cold water on the North Carolina GOP’s hopes that a majority of the justices would wholesale adopt this long-discredited theory. There is still a risk that the Court could adopt a milder version of the ISLD, in effect making itself the final arbiter of some election cases it doesn’t currently have jurisdiction over.

So what’s this all about?

Democrats’ ability to have state Supreme Courts take power away from state legislatures as to the rules governing federal elections. We saw that in multiple states in 2020, particularly in Pennsylvania. So this is about power, not principle.


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Lawmakers make laws, not unelected bureaucracies and not judges.

This is how is should be and always should have been.

    Milhouse in reply to geronl. | December 10, 2022 at 11:33 pm

    So you think lawmakers can make whatever laws they like, regardless of the constitution?! Do you think that only applies in the states, or do you apply it to congress too? Can congress ignore the constitution? If not, why not, since you would allow the state legislatures to do so?

Once again, Democrats tell us that the Constitution, all ~4500 words (counting only the 1787 text), has a lot of invisible ink, knowable only by them of course.

Ds have stood on its head the purpose of the Constitution – to LIMIT fedgov – and use every instance to expand the reach and cost of fedgov. To them the 10th Amendment is truly invisible.

    MattMusson in reply to pfg. | December 8, 2022 at 8:14 am

    Applying the law as written would completely invalidate the Voting Rights Act.

    Look for the SCOTUS to issue a legal sidestep.

      Milhouse in reply to MattMusson. | December 10, 2022 at 11:13 pm

      No, it wouldn’t. Congress, not the states, has the ultimate authority over congressional elections — except as to the polling places for senate elections.

    DaveGinOly in reply to pfg. | December 8, 2022 at 11:09 am

    Consider that these are the same people who went ape shit a few days ago when Trump suggested parts of the Constitution should be suspended under certain conditions. Yet they don’t have a problem ignoring huge swathes of the plain language of the Constitution, day in and day out, when they are actually in positions of public trust and their oaths of office are in effect.

What happened in PA was an abomination.

Worse – SCOTUS refused to take the case. Essentially saying that Congressional Districts were a State issue and the case shouldn’t have been heard in Federal C0urt at all. But, of course, its the US Constitution that gives State Legislatures authority to draw districts – and NOT State Courts.

The PA State Supreme Court tossed out the R drawn districts, supposedly for being too “gerrymandered” and “partisan”, and then hired an “independent” advisor to redraw the districts. He wasn’t “independent” in any sense of the word, What he drew up, and what the Court then implemented, were districts that were far more “partisan” than the Legislative D’s proposal, and also greatly more “gerrymandered” than what the R’s had passed.

Given the hyper-partisan record of State Courts on this issue, SCOTUS would be fully justified in issuing a sweeping ruling making it clear that the Constitution means exactly what it says, and that State Courts shall not have authority to review any decisions passed by the Legislature on the issue.

Same goes for State judges inventing rules for extending voting deadlines, or deciding whether and how mail in or absentee voting processes work. These decisions are passed by the Legislature and voted on. What’s been happening is that individual judges, and occasional State Supreme Courts, have been changing the rules based on their own personal opinions. Inventing new rules on the fly. Not just out of whole cloth, but typically in blatant violation of the clear text of statutes. Worse, it has been entirely politically partisan.

    I’m still puzzled by the Court not taking Texas v. Pennsylvania. When one state sues another I thought the Court had to take the case because it triggered the Court’s original jurisdiction, not its discretionary appellate jurisdiction.

    gwsjr425 in reply to Aarradin. | December 8, 2022 at 10:00 am

    SCOTUS, just a month or so back, did hear a case from the 2020 election regarding the counting of mail in ballots that were not properly postmarked. The case was brought by a local candidate for a judges seat that had a lead in the count but the race went to the democrat after they found 200 or so ballots that weren’t counted becasue of a bad postmark or a late date…can remember which.

    According to state law, those are invalid ballots but they were used anyway and the democrat ended up winning by 5 votes. SCOTUS ruled that state law made those ballots invalid and should not have been used. HOWEVER, SCOTUS did not invalidate the race and seat the actual winner.

    Following this reasoning, every ballot collected and counted in 2020 that didn’t follow state law, is by law an invalid ballot. The harvested ballots, the illegally placed drop box ballots, the late dated ballots, the ballots with no signature match ballots, the ballots without proof of ID…every last one of them is an invalid ballot. This IMO is the actual fraud that allowed democrats to steal the election. Everything else is shiny object nonsense.

      henrybowman in reply to gwsjr425. | December 9, 2022 at 6:31 am

      “SCOTUS ruled that state law made those ballots invalid and should not have been used. HOWEVER, SCOTUS did not invalidate the race and seat the actual winner.”

      Shouldn’t have been necessary. Our state constitution is quite clear:

      “Section 7. In all elections held by the people in this state, the person, or persons, receiving the highest number of legal votes shall be declared elected.”

      Presumably, whatever state this was has the same clause in theirs. Their state government should have completed the job.

US Constitution:
Section 4: Elections
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 choosing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

In other words, more usurping of the Constitution by the Leftists, but consefvstivrd won’t get as upset about this as they did when Trump said some portions of the Constitution should be set aside because the 2020 election was fraudulent. Trump’s problem was that he used the word Constitution and didn’t speak in euphemisms like the Leftists, such as “gun control”, or “censorship”, or “woman’s right to choose” or “extreme MAGA election theory”. Talk like that and the cons don’t get as mad.

“Long discredited theory..”? That Legislatures should legislate and the Judiciary should Judge cases? It is becoming discredited that is for sure.

Ruled by Robed Overlords

If the SC rules for independent legislatures (and I hope they do) then congress can make a law to change it.

Where is the threat to democracy?

Further, the power being in legislative hands is more ‘democratic’ than having the power in the hands of unelected judges.

    rwingjr in reply to jeffrey. | December 8, 2022 at 11:22 pm

    Actually, congress can’t make a law to change it. It would require a constitutional amendment and ratification by the states.

      Milhouse in reply to rwingjr. | December 10, 2022 at 11:17 pm

      Yes, Congress can make a law to change it, and it wouldn’t require an amendment. Congress has the ultimate authority over all aspects of congressional elections, except for the location of polling places in senate elections.

I don’t understand why the Dems are so upset over this one. Are they really so tired of rigging the elections each cycle that they want a more stable way to cheat? I mean, when districts that overwhelmingly vote D have a 150% turnout and nothing is done about it, why change things?

    rwingjr in reply to oldvet50. | December 8, 2022 at 11:24 pm

    You’re the 2nd person this week that I have heard say something similar. So if the turnout is more than the registered voters, why isn’t there an uproar? The first person I heard, I assumed he hadn’t taken the recent census into account. If that’s true, I can’t think of a more obvious legal challenge to an election.

      Milhouse in reply to rwingjr. | December 10, 2022 at 11:21 pm

      Turnout is never more than registered voters (obviously except in states where there is no such thing as voter registration; as far as I know that’s just North Dakota). There is no state, district, or even precinct, anywhere in the USA, where that has ever happened. Anyone claiming that it has happened is lying to you and you should not believe anything else they ever say.

Perhaps another example of Federal takeover of the basic intent of the Constitution. whereby fewer and fewer people, influenced by who knows what, decide our path. There is absolutely no reason for the Federal government in any of its forms to have jurisdiction over local, county, or state governments unless specifically authorized by the constitution. State courts cannot be allowed to override the legislature or the plain reading of the Federal / State constitution. A path to amend the constitution was created and must be followed.

the “independent state legislature” theory
“Theory”? So now, plainly written words in the Constitution are a theory?
Post-modernism writ very, very large.

    Othniel in reply to GWB. | December 8, 2022 at 4:56 pm

    Without thinking, I clicked on a link that led to an article on Slate talking about oral arguments today and how the “conservative justices were humiliated” during the oral arguments. Man, they even gaslight their own readers over there. The plain language of the Constitution is pretty obvious.

    henrybowman in reply to GWB. | December 9, 2022 at 6:33 am

    It’s just a “theory.” Like gravity.

Considering the passage of the 19th amendment was/is contingent upon the invocation of the ‘independent legislation doctrine’ then SCOTUS will at a minimum not reject it. Frankly, it would be far easier for SCOTUS to simply affirm it than try to create a muddled ruling that punts final determination. A couple States had to defend their votes for passage of the 19th amendment using this doctrine; reject it and it way have 2nd order impacts.

Affirming the doctrine gets SCOTUS and the CTs out of the business of listening to election arguments every cycle on these challenges. It puts the State legislature back in the driver seat to craft elections laws which as long as they are within the clear boundaries of the Constitution and Federal Civil rights laws wouldn’t be subjected to the thousand cuts of activists.

Where a particular State has additional provisions adopted in their own State Constitution that don’t tie the hands of the Legislature but merely offer additional clarity on implementing existing Constitutional or Federal voting rights law and those were passed by the Legislature then those could supplement the doctrine without overturning the cart.

Marbury v Madison V2.0. The courts determining what the courts can do. What was to be the “weakest” branch becomes the final arbiter on their grounds and not the direct wording of the Constitution. Another penumbra has been found.

BierceAmbrose | December 8, 2022 at 2:48 pm

Why do The Usual Suspects get so we-wee’d up whenever The Supremes declare; “Yeah, courts shouldn’t be handling that.”

Is their not eternally grasping at power so shocking? Really?

    The usual suspects don’t like it because they love having the courts as an option to enact sweeping changes without going through the work of legislating and exposing politicians to being voted out of office if the constituents don’t like it. That’s why they have a melt down every time a “conservative” justice is appointed.

      BierceAmbrose in reply to Othniel. | December 8, 2022 at 11:25 pm

      Exactly so.

      I, myself, love the occasional decision or dissent from The Supremes that amounts to: “You wanna do that; pass a law.” The screeching that comes after is just a bonus.

      I enjoy even more when some law gets passed to step on a decision or regulation, though that happens less often, and less clearly.

example #4,.234,567 of why the Constitution can’t protect you from people who never believed in laws in the first place

just as laws can’t protect you from people from never believed words have definite meanings

It looks like most of the commenters here have no idea what they’re talking about, or what this whole case is about.

It should be obvious that state legislatures are bound by their state constitutions. They are created by their state constitutions in the first place, and their entire power to do anything derives from those constitutions. Nobody disputes that when a state legislature makes a law, and the state courts find that it contradicts the state constitution, that law is invalid.

So the claim that when carrying out federal functions such as setting the rules for congressional elections they can simply ignore their state constitutions is startling. That doesn’t mean it’s clearly wrong; that’s why the supreme court is hearing the case. But commenters who are pretending that it’s clearly right are just being stupid or dishonest. The Supreme Court may find that way, but there’s a very good chance that it won’t.

And by the way, if the Court does adopt that theory, then we can say goodbye to last year’s court-ordered redistricting in New York. If state legislatures are independent of their state constitutions on this matter, then the map the legislature passed, which was heavily gerrymandered for the Dems, will automatically snap back into effect. Expect the governor to immediately order special elections in all the districts according to the old map, and that may be enough to wipe out the R majority in the House.

    BierceAmbrose in reply to Milhouse. | December 11, 2022 at 5:40 pm

    “Nobody disputes that when a state legislature makes a law, and the state courts find that it contradicts the state constitution, that law is invalid.”

    Plenty of people, including various State and Federal Judges have disputed exactly that, and continue to. “… the state courts find…’ is doing a lot of work above..

    “The state courts find” meaning one judge one time? Every court, jurisdiction, and claim has played out? Somewhere in between? There’s a case still in play, meaning at least some people think it ain’t done til they weigh in.

    We have appeals because everybody wants to be done as soon as someone says they’ve won.

    The_Mew_Cat in reply to Milhouse. | December 12, 2022 at 3:59 pm

    Yes. This whole case exists because of the outrageous nature of the NC Supreme Court’s rulings under Democrat control (and not just regarding redistricting). NC is a special case because the governor has no veto power over redistricting, so the legislature is checked only by the state supreme court – the Justices of which are elected in partisan elections. The best thing that SCOTUS can do is to leave it alone. The NC Supreme Court flipped (R) in the midterms, anyway.

    But the ISLT opens whole other cans of worms. Most states allow veto of redistricting bills by the governor. In some states, “independent” commissions act as the legislature for redistricting purposes. What rules imposed by state constitutions are OK and which aren’t? The Court would do best to leave this one alone.

Milhouse, why aren’t state supreme courts bound by the federal constitution when it comes to the time, place, and manner of federal elections under the Elections Clause? I haven’t read the briefs but it seems to me the Supremacy Clause figures into the analysis.

See Art. VI, para. 2.: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . .”