September 26, 2022

"This brief provides a rare and important opportunity for federal Supreme Court justices to receive direct input from their peers who sit on state supreme courts."

"State justices have a central stake in this case because, in our federalist system, they typically have the final say over the meaning of state law, and here they can directly explain to their federal counterparts why their traditional state role is worthy of protection."


The state judges are fighting for their own power against the "independent state legislature theory." According to the theory, the federal constitutional text — “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof” — means that state legislatures have the final say about state law, with no interpretive role for the state judges.

Liptak writes:
That means, North Carolina Republicans argued, that state legislatures have sole responsibility among state institutions for drawing congressional districts and that state courts have no role to play in applying their states’ constitutions. 
The North Carolina Supreme Court rejected that argument, saying that was “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”... 
The Conference of Chief Justices’ brief said... “While the text of the Elections Clause requires that state legislatures prescribe the laws governing federal elections... it does not otherwise displace the states’ established authority to determine the final content of their election laws, including through normal judicial review for constitutionality.”....

The independent state legislature theory, if it prevails in the U.S. Supreme Court, could exclude state courts from using their power over state law to affect "mail-in ballots, what it takes to register, what ID you have to show, how late the polls are open, how the ballots are counted, who gets to sit and watch when they do." 

52 comments:

sean said...

There are two different issues, which some of the parties are conflating, either due to confusion or disingenuousness. The first is whether state court judges have a role in interpreting state election law and overseeing in appropriate cases its implementation by executive officials. The second is whether state court judges may overrule a state election law by invoking the state constitution. Those two questions could have different answers.

rhhardin said...

The question is which system forces the wrong people to do the right thing. They're all corrupt enough so that there's no good solution here. Making it a federal thing though at least focuses national outrage on bad enough corruption in any state, instead of burying it in hardly-present local news.

Drago said...

"That means, North Carolina Republicans argued, that state legislatures have sole responsibility among state institutions for drawing congressional districts and that state courts have no role to play in applying their states’ constitutions."

Uh, yeah, cuz that's what the Constitution explicitly states. But hey, it's only explicitly in the Constitution, so, you know, no "emanations" and "penumbras" lying about for the New Soviet Democraticals to abuse to "fortify" elections.....

"The North Carolina Supreme Court rejected that argument,..."

The New Soviet Democraticals on the NC Supreme Court rejected the argument that they cannot do whatever the hell they want whenever they want with whatever they want....

....gee, what a surprise.

Naturally, the New Soviet Democraticals know they have a functional Democratical in Roberts on their side so Roberts just needs to get one of his hit-or-miss/random followers in Kavanaugh or Barrett to go along with him to deliver another death blow to the Constitution in favor of his beloved democraticals.

gahrie said...

Here in California we had a judge overrule a Constitutional amendment passed by the voters by citing the Constitution that was being amended.

Joe Smith said...

Judges need to know when they are not wanted.

Who will watch the watchers?

n.n said...

Sometime we live in a democracy (i.e. majority authority), other times we live in a dictatorship (i.e. minority authority), and other times yet we live at the twilight fringe (i.e. emanations from penumbras, conflation of logical domains).

PB said...

The situation arises because of the instances where state law defined by the legislature was arbitrarily overruled by state judges. The example is where state law requires mail-in ballots to be received by a certain date and this requirement was set aside by governor's or state courts because of "emergencies" when no provision in state law allows for this. Also when ballot collection boxes are deployed 8n direct violation of state law. Also when requirements for a ballot such as signature or other validating information is absent yet the governor of state courts insist those ballots be counted.

Ann Althouse said...

You're right, sean.

I hope I haven't added to any confusion about that.

Achilles said...

Several states in 2020 implemented “emergency “ rules to allow mail in voting.

They want to keep doing this through the courts because voters and legislature don’t want the fraud that was rampant in 2020 to continue.

I find it hilarious that Judges are going to decide who wields power here. Just like Marbury v Madison I expect Roberts and the other leftists on the court to centralize all power in the courts and eliminate the legislatures completely.

The Regime needs vote fraud to continue or they will be voted out of power.

rcocean said...

Aren't all State Supreme Courts the creatures of their state legislatures? Cant the legislature not only set the terms/numbers of their courts, but their method of selection AND what they can and cannot rule on?

Where in the US constituion do State Court have the right to get the Federal Court to set their jurisdiction? I cant find that anywhere. Of course, I'm being silly. Leftist judges are results orientented and are "untethered to the Constitution". I have no doubt that all three 3 Democrat Judges will support the NC Supremes because its good for the Democrats. What Roberts and the other 5 judges will do is anyone's guess.

Gusty Winds (Elon Musk Fanboy) said...

Without liberal justices being included in the state election law process, how are Democrats supposed to continue the absentee ballot fraud?

Here in Wisconsin it didn't even take the Wisconsin Supreme Court to ignore and override WI State Election laws in 2020. That was stupidly subcontracted to the Wisconsin Elections Commission who assigned themselves the constitutional ability to change WI election laws on they fly.

Liberal Judges on the WI Supreme Court didn't seem to interested in reigning them in.

Christopher B said...

Seems to me that this is mostly about preserving the 'two bites of the apple' for voting jurisdiction such as was used in Minnesota in 2020 to eliminate the witness signature requirement. The Democrat Secretary of State colluded with the League of Women Voters to have suits brought to eliminate the requirement 'due to COVID' in both Federal and State court. The Federal judge refused to sign off on the settlement but the State judge did.

rcocean said...

Election laws should be the job of the legislature. Period. We seem to be stuck with an out of control Federal Judiciary that thinks it can make law and strike down any law it doesn't like. Why a STATE would want to give its judiciary the same power is beyond me.

State Supreme courts should be forced to confine themselves within narrow limits. But Repubican legislatures never have to the guts to corral them. Even in winsconsin. Typical of these judges is that the Florida SC tried to give Gore the election 2000, and the Penn SC gave it to Biden in 2020 by completely changing the election laws just prior to the voting.

Scott said...

if they don't like the constitution, they can work to change it. Instead they focus on lawfare

Rabel said...

"It concerns a congressional voting map drawn by the North Carolina Legislature favoring Republicans that was rejected as a partisan gerrymander by the state’s Supreme Court."

This is the case where the NC Supreme Court got way out over its skis and found a previously undiscovered right to be free from partisan gerrymander in the NC Constitution and used that to implement a partisan gerrymander of it's own.

The Conference of State Chief Justices is worried that the power play by the NC Court will backfire and they will be held to only Constitutionally delegated authority in this type of situation in the future.

mccullough said...

So the state chiefs want the Court to add to the Constitutional provision “in each state by the legislature thereof” by inserting “subject to whatever the state’s highest court thinks the state constitution requires.”

The Constitution already addresses the state chiefs concern: Amend the Constitution.

The Constitution already distinguishes states, from state legislatures and governors.

So do The Chiefs think that a state legislature’s authority to empower a governor to temporarily appoint a Senator to fill a vacancy is subject to their interpretation of a state constitution?



Original Mike said...

What PB said. I might be supportive of the state courts position if they hadn't abused their authority so badly in 2020.

gilbar said...

— “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof”

hmmm? What does the US Constitution say about this matter? Oh, that's right; it says...
— “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof”

Does anyone (anyone? any one, at all) consider, that this means what it says?
If
A) the state house rules that ballots should be secret, and in pen
and the state court rules,
B) NO! the ballots should be preprinted Democrat, and just ASSUMED to be that way

Which side prevails? What is the recourse for The People?
To vote out the Judges? would be pretty hard after this ruling

gilbar said...

mccullough said...
So do The Chiefs think that a state legislature’s authority to empower a governor to temporarily appoint a Senator to fill a vacancy is subject to their interpretation of a state constitution?

i wouldn't ask them, you wouldn't like their answer

tim maguire said...

The federal constitution says it's up to the state legislature to decide election rules. But the state constitution sets the rules by which the legislature operates. So it seems to me that if the state constitution gives the state courts review power over the acts of the legislature, then the state courts get the final say over the legislature's rule-making in elections just as they do about everything else (i.e., lawmaking about election rules should be treated the same as lawmaking on any other state issue).

Narayanan said...

how does this affect theory/practice of judicial review : created by Marshall?

was there any purely state level judicial review prior to that? would that be precedent?

Static Ping said...

If it is found that state legislatures do have the final say in election laws, would this be abused? Yes. However, we have already seen what the courts will do when they have the final say, and they abuse their power. I'd rather be abused by the organization that is explicitly designated to make the rules and is elected, rather than deal with courts that just make stuff up at the last minute. I tire of judges extending voting hours every freaking election, despite apparently the problems that forced this the last dozen times never being addressed.

If the legislature wants court review, they can specify that the courts can review. Of course, the legislature cannot explicitly violate the state constitution or the federal constitution, so the courts always have the right to review that sort of thing, but they should be very conservative in such rulings. And they haven't been.

Pick your corruption.

Narayanan said...

So it seems to me that if the state constitution gives the state courts review power over the acts of the legislature
=============
how many state constitutions pre-date the Federal Constitution? and provide review power?

did Marshall 'usurp' power of review not provided in Federal Constitution or
did he just aligned it with state level review to include 'speaking for all states' at Federal level

Narayanan said...

did Professora ever set student exercise to diagram sentences in USA National Federal Scriptures?

any relevant to issue here?

chuck said...

After the last several years, I have no confidence in the integrity of the court system and the judges thereof. Nor do I think they have an argument that isn't self serving. In a time of universal corruption, I'm not in favor of centralizing power, it only makes corruption more efficient. Leaving the power to the legislature as prescribed is the best solution. There will be corruption, but it won't be incurable, which it would be if left to the courts.

Buckwheathikes said...

“The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof."

The very same US Constitution which vests the power to select the manner of elections prohibits the United States Supreme Court from deciding this case. The Supreme Court lacks jurisdiction in this matter.

Neither the state courts, NOR the Supreme Court, has ANY ROLE in deciding the times, places and manner of holding elections for our senators or representatives. That power is RESERVED to the legislatures and the legislatures ALONE.

The Supreme Court has no standing to even hear this case, much less decide it. The Constitution already decided this case, when it was written and signed.

Don't like it? Move to another country or attempt to amend the Constitution and see how fast you end up in jail with the J6ers.

Paul A. Mapes said...

What these state justices are really arguing is that if a state has a constitution, the state's supreme court can use some of the vague language in that constitution as a pretext for turning the state's supreme court into some kind of super legislature that can override and rewrite any legislative enactment it doesn't like.

Paul A. Mapes said...

What these state justices are really arguing is that if a state has a constitution, the state's supreme court can use some of the vague language in that constitution as a pretext for turning the state's supreme court into some kind of super legislature that can override and rewrite any legislative enactment it doesn't like.

Maynard said...

With all due respect to judges and constitutional lawyers, my attitude was shaped by the Bush v. Gore shenanigans. The trial under Judge Saunders was amazingly clear, but so was the rank partisanship of the (Democrat majority) Florida Supreme Court.

Left Bank of the Charles said...

“Prescribe” is an interesting Constitutional word choice. Doctors prescribe but pharmacists look at whether the prescription is consistent with the patient’s other medications and conditions

NMObjectivist said...

Time to reread Marbury v. Madison.
Do courts have the final say?
https://supreme.justia.com/cases/federal/us/5/137/#tab-opinion-1958607
Or here WIKI discussion.
https://en.wikipedia.org/wiki/Marbury_v._Madison.

SDaly said...

Have not read the briefs, but even if the judges lose this one, it doesn’t effect their ability to oversee the times places and manners that a legislature may establish for non-federal elections. Most election days are dual - with federal and state offfices on the Sam ballot. If a state court wants to interfere, can’t it just say that it is acting purely as to the election for state offices? If the legislature wasn’t a to have separate rules / procedures / ballots for state and federal elections, they are free to do so.

Mike (MJB Wolf) said...

I don't think that article fairly presents the sides and what they are arguing. The Constitution gives state legislators the power to write state and local election rules, but during 2020 too many state courts stepped in and suspended rules or enacted rules not conforming to state law (PA) that severely impacted the election outcomes. There was no injunctive relief before hand. Courts did the "no standing" dance along with that other special word they trot they basically means "too late now so sad." The vocabulary around voting rights has become terribly bastardized by democrats/journolisters calling any laws proposed by Republicans "suppression" even if the outcome is MORE votes in minority districts. How can I trust these assholes to write honestly about the current fight?

Leland said...

State Supreme Court Judges are peers to the United States Supreme Court Justices? Or, and more interestingly, is it a claim that State Supreme Court is peer to the Supreme Court of the United States?

Drago said...

Left Bank of the Charles: "“Prescribe” is an interesting Constitutional word choice. Doctors prescribe but pharmacists look at whether the prescription is consistent with the patient’s other medications and conditions"

Another patented Left Bank moronic analogy.

Gusty Winds (Elon Musk Fanboy) said...

Mike (MFB Wolf) said...Courts did the "no standing"..."too late now so sad"

And then as and extension of their overreach and corruption, our courts gave the media and every other twitter liberal the armed lie that all court cases regarding the 2020 election fraud were "lost".

Even the United States Supreme Court cowered at hearing Texas vs. PA. I still believe that was the last, best hope. Now the fraud and the power of the courts and committees like the Wisconsin Election Commission are baked in.

Bender said...

It's a simple Supremacy Clause issue. The federal Constitution giving state legislatures power over elections overrides, via the Supremacy Clause, anything that state constitutions say, meaning that state courts have no place.

Clark said...

Part I of Rehnquist's Concurrence in Bush v Gore speaks directly to the issue here — and it gets it right, I think.

"Though we generally defer to state courts on the interpretation of state law . . . there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law."

"This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II."

Evangelos said...

While somewhat sympathetic with the state judges, I recall the 2000 election when the Florida Supreme Court fundamentally altered the election statute passed by the state legislature under the guise of merely interpreting it. There needs to be a way to stop that kind of abuse and I don't think you can always count on the U.S. Supreme Court to do it. The Constitution is clear, it's up to the legislatures to pass election statutes. I think it's better to err on the side of allowing only the legislature to make election law, not state courts. If abuses result from that then they can be rectified by the people via election.

Howard said...

Get over it... This is how the sausage is made.

The Godfather said...

I think insufficient attention is being paid to the fact that we are discussing a provision of the FEDERAL Constitution dealing with elections to FEDERAL offices. It's different from the STATE courts reviewing STATE laws enacted by the STATE legislature regarding elections to STATE offices. Suppose that the Constitution said “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by a special commission consisting of all FEDERAL representatives and senators of such state." Would any State court judge have the chutzpah to think he/she could review the work of such a FEDERAL commission? Only a FEDERAL judge, applying FEDERAL law, could do so. The fact that the Constitution chooses to appoint the State legislature to perform this FEDERAL function shouldn't change that result.

realestateacct said...

In what way is it surprising that state judges want to continue to be able to disregard legislation concerning elections?

Jupiter said...

Well, OK. It is an interesting instance of a conflict between levels in our unique American system. Which should prevail, the State or the Federation?

Until you realize that in fact, it is simply one more instance of the Left using the internal contradictions of our American system, which they hate and despise and intend to destroy, to confuse their opponents while they ready the death blow. They have no intention of honoring any constitution, nor any legal agreement. Their plan is to put a cord around everyone's neck, and then ask, "Who is not happy with our system of government?".

If you are wise, you will be happy with their system of government. Or else, right now, you will resist their efforts to put the cord around your neck.

Narayanan said...

since the Constitution [Federal Scripture] needed to be ratified [= consented to] by each? and every? State Legislatures - how does that impinge on this current question?

Narayanan said...

The trial under Judge Saunders was amazingly clear >>>
===========
I remember reading much later that David Boies who represented D/Gore was lying his head off in Court while in presenting facts?! and case law?!


Drago said...

Howard: "Get over it... This is how the sausage is made."

How do you manage to keep your Gets-It-A**-Backwards Rate at an even 100%?

This isn't "how the sausage is made". This is the "we dont like sausage so we are going to substitute bad tofu for it even though the recipe says explicitly that we cannot".

Other than that, its another "fine effort" on your part and I am certain you will get a nice participation trophy.

Rusty said...

Leland said...
"State Supreme Court Judges are peers to the United States Supreme Court Justices? Or, and more interestingly, is it a claim that State Supreme Court is peer to the Supreme Court of the United States?"
That struck me too. The only peer to a Supreme Court Judge is another Supreme Court Judge. They sit in judgement of lesser courts decisions. Whos judges are not their peers.

Jupiter said...

"since the Constitution [Federal Scripture] needed to be ratified [= consented to] by each? and every? State Legislatures - how does that impinge on this current question?"

Do you happen to recall where that "need" arose?

Larvell said...

Aren't all State Supreme Courts the creatures of their state legislatures?

I suspect the answer is that NO state supreme courts are creatures of their state legislature. Rather, they are creatures of their state constitution.

Greg The Class Traitor said...

That means, North Carolina Republicans argued, that state legislatures have sole responsibility among state institutions for drawing congressional districts and that state courts have no role to play in applying their states’ constitutions.

If the State Supreme Courts had a habit of being honest, one could argue against this interpretation.
But since they almost uniformly interfere pushing left wing bullshit that has no justification other than the personal desires of the "judges", this is clearly the best way forward.

The North Carolina Supreme Court rejected that argument, saying that was “repugnant to the sovereignty of states, the authority of state constitutions and the independence of state courts, and would produce absurd and dangerous consequences.”...

Shorter NCSC: This takes away our personal power, and therefore we reject it"
I note that they don't find it in ANY way "repugnant" to "democracy", or to "voter sovereignty".
Because to these nimrods, it's not the voters who are / should be sovereign, it's members of the North Carolina Supreme Court.

The Conference of Chief Justices’ brief said... “While the text of the Elections Clause requires that state legislatures prescribe the laws governing federal elections... it does not otherwise displace the states’ established authority to determine the final content of their election laws, including through normal judicial review for constitutionality.”....

If Supreme Court members get to toss those laws because they dont' like them, then that's a violation of the Supremacy Clause
And since that's what the Lefty SC members are doing, it IS a violation

The independent state legislature theory, if it prevails in the U.S. Supreme Court, could exclude state courts from using their power over state law to affect "mail-in ballots, what it takes to register, what ID you have to show, how late the polls are open, how the ballots are counted, who gets to sit and watch when they do."

And in every case where it's been an issue, the judges have abused their power to push their personal political agendas, rather than to uphold the State Constitution.

There is NEVER any reason to order that a voting place be "open later".
Anyone who's in line at the official closing time, still gets to vote.
The only reason to order them to be held open later is that you're shuttling around people to vote in multiple locations, and slow voting has cut down on the number of illegal ballots each of your "voters" can generate

Greg The Class Traitor said...

tim maguire said...
The federal constitution says it's up to the state legislature to decide election rules. But the state constitution sets the rules by which the legislature operates. So it seems to me that if the state constitution gives the state courts review power over the acts of the legislature, then the state courts get the final say over the legislature's rule-making in elections just as they do about everything else (i.e., lawmaking about election rules should be treated the same as lawmaking on any other state issue).

You've apparently missed out on the Non-Delegation doctrine, among other things.

The US Constitution, which is supreme over any State Constitution, states that the power belongs solely to the State Legislature.

Just as Congress can not constitutionally grant law-making power to the Executive, the State Legislatures can not grant the Courts the law making power here.

It resides solely in the hands of the State Legislature.

So no, a State Constitution saying otherwise loses to the Us Constitution.

Greg The Class Traitor said...

SDaly said...
Have not read the briefs, but even if the judges lose this one, it doesn’t effect their ability to oversee the times places and manners that a legislature may establish for non-federal elections. Most election days are dual - with federal and state offfices on the Sam ballot. If a state court wants to interfere, can’t it just say that it is acting purely as to the election for state offices? If the legislature wasn’t a to have separate rules / procedures / ballots for state and federal elections, they are free to do so.

Nope, you have that backwards. They are not allowed to change the rules for the Federal election. If there's a State election happening at the same time, then unless they have special "State Election only" ballots that are handed out under the judges' ruling, the ruling interferes with the Federal Election.

Which is not allowed