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This Week in Statehouse Action: Courting Disaster edition
This week, the U.S. Supreme Court (before deciding that racism is over and announcing other crap decisions) delivered a huge win for those of us who were fretting about a certain case out of North Carolina – and a win for the foundations of American democracy.
Moore v. Harper is the case that put the Independent State Legislature Doctrine (ISL or ISLD) before the highest court in the land, and given the body’s current conservative supermajority, the fear that this case would go the way many Republicans wanted it to was legitimate.
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Thankfully, SCOTUS voted 6-3 to reject the ISLD, and the ramifications for the future of elections in the United States really cannot be overstated (mostly, we all just got an epic reprieve from GOP state lawmakers doing literally whatever they want to make voting harder, gerrymander electoral maps … honestly, just imagine any law that might benefit Republicans electorally going completely unchallenged and unchecked).
But because it’s
Been ages since I discussed this (the case has been making its way through the legal system for quite some time), and
You’re a normal (relative to whatever weirdness that prompts someone like me to keep track of state legislative happenings across country) human who’s pretty sure that this decision didn’t, say, eliminate a fundamental right and consequently carried on with your day,
… I’m here with everything you need to know about what the case is, how we got here, and why it matters so dang much.
First, what is the Independent State Legislature Doctrine, anyway? It doesn’t sound all that bad tbh – shouldn’t state legislatures be independent?
…okay so the kind of state legislative “independence” at issue in Moore isn’t independence from, say, special interests or partisan orthodoxy.
Rather, it’s about state legislatures’ independence from any sort of checks or oversight when it comes to passing new election laws – which includes not only basic voting and election administration measures, but also laws regarding redistricting.
Basically, the ISLD claims that state lawmakers—and only state lawmakers—have the authority to determine how states conduct federal elections.
I won’t bore you with legalistic semantics, but the short version is that this VERY convenient and simplistic interpretation of a specific provision of the U.S. Constitution that has been rejected by over a century’s worth of past SCOTUS decisions on related matters.
The case started in a state that’s super familiar with GOP legislative overreach: North Carolina.
The “Moore” in Moore v. Harper is North Carolina House Speaker Tim Moore, who spearheaded the suit after the state Supreme Court – which still had a Democratic majority at that point – ruled against a Republican-drawn congressional map in 2022.
The ruling was based on a provision in the state constitution guaranteeing free elections, which the court deemed had been violated by a 10 R-4 D congressional map in a state that’s pretty evenly divided electorally (in 2020 it went 50-49 for Trump and 52-47 for Democratic Gov. Roy Cooper).
The court went on to approve a 7 R-7 D congressional map.
Moore and his fellow Republicans then asked the highest court in the country to overturn the decision of the highest court in the state based on its supposed violation of the Independent State Legislature Doctrine.
But hey, with a conservative supermajority on the U.S. Supreme Court, Moore had to figure his odds were pretty decent.
Okay, where did this zany ISLD notion come from?
The ISLD is based on a … suspect reading of the word "legislature" in the U.S. Constitution’s elections clause. That clause states that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof" unless Congress passes laws to the contrary.
The GOP’s selective interpretation of this under ISLD is that only state legislatures themselves can make election laws and cannot be subject to any form of democratic checks, balances, or oversight.
This means that state courts would not be permitted to rule on the legality of any election laws pertaining to congressional or presidential elections.
This would also mean that governors would not have the power to veto these laws— hell, they wouldn't even have to sign them in the first place.
Also also, this means that voters would no longer be able to use ballot initiatives to pass laws relating to federal elections, which includes those creating independent redistricting commissions (which would make the ones in Arizona, California, Michigan definitely go POOF and put a bunch of others in potential legal jeopardy).
But more bluntly, the “where this comes from” question is most correctly answered “from GOP state legislators’ fever dreams.”
It’s not extreme at all to believe that, if SCOTUS had found the ISLD to be a legitimate thing, any state’s constitutional provisions that protect the right to vote, limit gerrymandering, or otherwise constrain lawmakers’ ability to skew elections would just, like, not matter any more.
Governors would lose their ability to veto any law impacting federal elections, and state courts would lose their authority to strike down these laws.
Checks and balances for thee but not for meeeee
Anyway, so, while the nightmare scenario of, say, Wisconsin or North Carolina or Tennessee or Georgia or [[insert pretty much any state where Republicans have full control of the state legislature here]] suddenly having absolute carte blanche to fuck around with federal election laws was avoided this week, it wasn’t, like, total good news.
I mean, you’ve met this Court, right? It has a supermajority of undemocratic, corrupt assholes … ahem, I mean a supermajority of conservatives, so we really can’t expect good news to not come with baggage.
Chief Justice John Roberts wrote the majority opinion in the case, and while he was helpfully maintaining basic democratic functionality in our country, he was also slipping in something that might both give conservatives who chafe at judiciary oversight a little hope and give the rest of us the anxiety sweats.
Roberts’s opinion includes a vague section which concludes that federal courts may get involved if a state supreme court “transgress[es] the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” The opinion also notes that “state courts do not have free rein” (who was saying they did, though??).
What are these “ordinary bounds”? What “power vested in state legislatures” is he referring to, specifically?
By refusing to lay out clear rules explaining when such a transgression has occurred, Roberts’ opinion may empower a future Supreme Court to overrule a state supreme court’s decision that, say, sought to settle a federal election.
Realistically, though, we already knew the Court had this power and was willing to use it in, ah, certain circumstances (we olds remember Bush v. Gore with an atavistic shudder but the youths must be warned!). Roberts basically just finally put it in writing.
Moore opinion: Mostly good! With a tiny bit of “ehhhhhhhhh that’s not awesome.”
Also, three justices (if you guessed Thomas, Alito, and Gorsuch, you deserve a cookie) failed to roundly reject the ISLD.
Thomas and Gorsuch actually endorsed a weaker – but no less problematic – notion of the ISLD than the one North Carolina Republicans wanted the Court to give its blessing to (they want to render state constitutional provisions that protect voting rights or safeguard against gerrymandering unenforceable, please try to hide your shock).
While we’re talking about courts doing not-bad things just a little, as a treat, let’s take a moment to recognize that a few courts – two just this week – have blocked some of the diabolical bans on gender-affirming care for minors that GOP-controlled legislatures have been passing willy-nilly.
A federal judge in Kentucky temporarily blocked parts of a law Democratic Gov. Andy Beshear tried to veto in March.
Well, he did veto it, but because a simple majority vote is all that’s needed to override gubernatorial vetoes in Kentucky, the GOP controlled legislature had a good chuckle (I imagine) and overrode it between sips of mint juleps (again, literally making this up, but it’s a great scene in my head).
The part of the new law banning gender-affirming care (including hormone therapy and puberty blockers) would have taken effect on Thursday, but on Wednesday, Judge David Hale temporarily blocked this provision.
This means that transgender youth in the state will still have access to these healthcare options as litigation over the new law continues.
Just hours later, a federal judge in Tennessee (a Trump appointee, by the by) similarly ruled to temporarily maintain access to gender-affirming medical care for transgender minors as the suit seeking to invalidate the Volunteer State’s sweeping anti-transgender law makes its ponderous way through the courts.
The law was set to take effect on Saturday.
Earlier this month, a federal judge in Arkansas fully overturned (as opposed to the temporary blocks described above) the nation’s first law banning gender-affirming care for transitioning transgender youth, deeming it “discriminatory and unconstitutional.” (He’d temporarily blocked its enforcement in 2021.)
A few weeks ago, a federal judge in Indiana also temporarily blocked the state’s ban on hormone therapy, puberty blockers, and other non-surgical transition health care for transgender youth.
Early this month, a federal judge in Florida also temporarily blocked that state’s ban on gender-affirming care for transgender kids – but only for three kids at the time.
Last week, that same judge fully struck down Florida’s law prohibiting Medicaid from covering gender-affirming care generally. It’s not a fix for all the transgender youth in the Sunshine State who need this care, but it’s a really good sign that this case will eventually go their way.
And – brace yourself, this is going to feel very weird – Florida recently produced even more good news regarding DeSantis’s savage crusade against everything even remotely LGBTQ-flavored.
Last week, a different federal judge temporarily blocked the enforcement of Florida’s new anti-drag law.
Even better, he found that the law is likely both unconstitutionally vague and unconstitutionally violates the First Amendment.
LGBTQ Americans – and transgender youth in particular – are still very much taking constant fire from Republican-controlled legislatures and the right-wing media outlets and personalities that helped bring this hate into the political mainstream.
But after spending pretty much my entire winter and spring describing the unrelenting GOP attacks on these communities, it feels pretty okay to finally be able to write about some wins for, like, basic human decency and the freedom to live one’s life as oneself.
Remember, transgender people don’t kill people, gun people kill people
Okay, this was a lot of legal and court stuff. Let’s wrap with something a little more straightforward in terms of policy.
Ballotpedia, which is one of my favorite and most trusted resources out there (although I’m admittedly dismayed that it inexplicably omits Virginia LG Winsome Earle-Sears’ time in the House of Delegates from her page), just dropped a report analyzing all of this year’s election-related state legislation (…for the first five months of the year, anyway).
The report reveals that, almost impressively, GOP-controlled state legislatures have found time to do something other than just bully transgender kids and foment anti-LGBTQ hate.
Ballotpedia tracked 2,682 election-related bills.
Lawmakers enacted 183 of these measures.
In 2022, lawmakers enacted 236 of the 2,520 election-related bills Ballotpedia tracked. With half the year left and some legislative sessions not yet over, 2023 could absolutely meet or beat that number.
Governors have successfully vetoed 17 election-related bills in 2023 (same as in all of 2022).
Democrats sponsored 33 of these measures, while Republicans sponsored 110.
Twenty-two of them had bipartisan sponsorship.
The remaining 18 bills had some other type of sponsor, including committees.
State governments with Democratic trifectas enacted 30 bills.
Republican trifectas enacted 136.
The handful of states with divided governments enacted just 17.
A few trends highlighted in Ballotpedia’s report:
State lawmakers have considered more ranked-choice voting bans so far in 2023 than in any previous year.
So far this year, there’s been nearly a 50% increase in the number of bills that would consolidate election dates, and more states have considered legislation to change school board election dates (they’re often held in the spring, which tends to depress turnout).
Republican trifecta states enacted a majority of the bills on voter list maintenance, and multiple states have considered bills related to the Electronic Registration Information Center (ERIC) this year.
Legislators in Texas introduced the most election-related bills so far this year (391).
Colorado lawmakers introduced the fewest (nine).
The number of bills blocking ranked choice voting (RCV) has nearly doubled over last year – from nine to 15 in just the first five months of 2023.
As of May 31, five states have enacted RCV bans: Florida and Tennessee last year, and Idaho, Montana, and South Dakota this year.
All five states with RCV bans have Republican trifectas.
As of December 2022, 22 states required voters to present photo ID when casting a ballot; so far this year, Nebraska and Ohio have joined this list, bringing the total to 24.
Okay, in the interest of preventing this week’s edition from becoming the monstrosity that was last week’s, I’m going to wrap and wish y’all a wonderful weekend and July 4th.
After all, you deserve a wonderful weekend/holiday.
Yeah, you do. No arguing, because I’m right.
So take care of yourself.
You’re important, and we need you.
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