2023 Supreme Court: The Independent State Legislature
The good news is: the Supreme Court rejected a very dangerous lawsuit and a very dangerous idea by a convincing, 6-3 vote.
The bad news is: an idea so ridiculous that it would have earned me the scorn of Mr. Jeffreys if I had suggested it in my 12th grade civics and problems class actually captured the imagination of one of the political parties, made it to the Supreme Court, and got the support of a third of the justices.
Here’s the legal theory: the Constitution gives state legislatures the authority to set the rules for and conduct elections and to appoint presidential electors. Period. They’re in charge and nobody can second guess them.
That’s it.
The fact that every other authority in the Constitution is given to someone and that in every other case there is a check on that authority is irrelevant. They meant unilateral, just in this one case.
Therefore, if this proposal were adopted, the governor could not do anything to resist a grotesquely gerrymandered congressional map. Similarly, the state Supreme Court can’t reject a new election law that flagrantly discriminates against blacks, poor people, and young people.
For that matter, and getting to the real point, the state legislature would be free to throw out election results and just appoint the winner – or completely cancel the election and just appoint electors..
So the Constitution, the master work of James Madison, specifically constructed to divide power among different branches of government so they can act as a check on each other, JUST IN THIS ONE CASE, said “oh, never mind.” Checks and balances for everything else, but for this minor and unimportant thing, you know, elections, we’ll just put one man in charge.
Madison studied every system of government ever created and read every treatise on politics ever written (yes, indeed, the uncompensated labor of several hundred slaves created the country’s first leisure class). He studied why the Greek experiment in democracy and the Roman Republic eventually failed, and his key insight was “checks and balances.” Here he is in Federalist 51, explaining why his Constitution won’t lead to tyranny:
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself
And this man in just one case, said “never mind, they get absolute power. Over elections.” It says something about how debased our government system has become that this ridiculous idea got as much traction as it did.
in case you misse4d it
The Courts: From worst to worse yet