Supreme Court to hear case on GOP ‘independent legislature’ theory | Hacker News Reader

Supreme Court to hear case on GOP ‘independent legislature’ theory

politico.com

21 pointscmurf15 comments

If not the branch mentioned in the Constitution, SCOTUS would have to pick some other branch as senior for gerrymandering purposes. By what logic would they select a different branch? Discretion in the choice of branch is room for a judicial thumb on the scale. Picking the judicial branch would be self serving.

Clearly there's a huge incentive for corruption by giving legislatures the power to choose their own voters. But those incentives apply to the other branches too.

I'd like to see gerrymandering made moot by representation that is selectable by the voter across geographic boundaries. Each voter chooses their representative, instead of visa versa in a gerrymander. I wonder if a sufficiently independent legislature could do that in a way that is consistent with the Constitution.

Can't you just have an independent committee draw the electoral boundaries, like what happens in several other democracies?

A committee with that kind of power is never going to be independent

Gerrymandering is pretty much considered a non-issue in Australia. The boundaries are drawn by an electoral authority which is fiercely independent.

The extent of politicisation of all different aspects of society, from electoral authorities, to courts, to sheriffs and DAs really seems to be a problem unique to America, I'm afraid.

Not if the Supreme Court rules that the Constitution requires active approval by the legislature, not laws creating a legal framework passed by the legislature.

For example many states require electors for the electoral college to be allocated by law, a partisan legislature may simply appoint electors for their preferred candidates, even if that candidate "loses" the election.

How is this independent committee chosen and how do you ensure they are independent?

California already uses a committee like this, so do other states.

As noted above, many countries in the world do this. But that is not the question. The question is how are the members of this committee chosen and how do you ensure it is independent?

California is not a good example of political independence: they have a super majority of Democrats in all branches of government.

"Independence" means variations on the Left; the Right can be completely ignored as they are politically powerless—largely due to ~1M Right-leaning voters exiting California for over a decade now.

Would you mind explaining the California process and how they ensure independence?

https://ballotpedia.org/Redistricting_in_Iowa

Doesn't seem that independent. They are literally appointed by the legislature / members of the legislature.

> one member selected by the majority leader of the Iowa State Senate

> one member selected by the majority leader of the Iowa House of Representatives

> one member selected by the minority leader of the Iowa State Senate

>one member selected by the minority leader of the Iowa House of Representatives

>one member selected by the first four members

Textualism, Judicial Supremacy, and the Independent State Legislature Theory

Wisconsin Law Review, No. 5, 2022

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4141535

They argue the theory is subterfuge. It actually results in enhanced power of the federal judiciary, empowered to apply textualism on state constitutions.

And more articles on the subject here:

https://www.brennancenter.org/our-work/research-reports/guid...

As I read these, I think the Court must reject the concept of federal reviewability of elections presented by this theory. With respect to the Electoral Count Act of 1887, Congress needs to reinforce (a candidate receiving a plurality or majority of the votes must have assigned a plurality or majority of the Electors), and simplify it.

From Lincoln's first inaugural address, he's clear that the majority in power should be restrained by constitutional checks and limitations for the purpose of making the government easy to change to represent the majority. And he makes the case that minority rule is not valid, with the rejection of majority rule leading to anarchy or despotism.

https://avalon.law.yale.edu/19th_century/lincoln1.asp

ISLT seeks to make the minority "legally" win by fighting it in courts. And as Lincoln also said If the minority will not acquiesce, the majority must, or the Government must cease. The majority's only reason to acquiesce is the fear of what it means for the government to cease, because otherwise it's not a politically legitimate arrangement, even if it's somehow shoe horned into being a legal one.

SCOTUSblog link if you're so inclined:

https://www.scotusblog.com/case-files/cases/moore-v-harper-2...

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