Supreme Court preps the ground for a return to "state's rights"

Celebrations among Democrats are taking place in Pennsylvania and North Carolina this week after the Supreme Court refused requests by Republican legislatures in those states to reinstate congressional district maps which had been overturned by state courts.  In North Carolina, the Republican-controlled legislature had drawn a map which would have enabled Republicans to win 70 percent of congressional seats in a state where voter registrations are evenly divided between Democrats, Republicans and Independents.  In Pennsylvania, the state Supreme Court approved a map that would have given Democrats two more congressional seats than Republicans.  The Republican-controlled state legislature asked the Supreme Court to intervene and reinstate a map they had drawn that would have resulted in one less Democratic congressional district.

But Democrats shouldn’t get their hopes up because four of the nine justices on the Supreme Court signed opinions signaling that they are open to a wholly bogus interpretation of the Constitution’s Elections Clause, which provides that  “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 (sic) Senators.”

The way the Elections Clause has been interpreted for more than 100 years by the Supreme Court has granted the power to regulate elections to the states, including election provisions written into their constitutions, laws passed by legislatures, and interpretations of election laws by state courts.

Those 100 years of Supreme Court decisions are not good enough for Gorsuch, Alito, Thomas and Kavanaugh, however.  They subscribe to something euphemistically called “The Independent State Legislature” theory, which holds that the Constitution should be interpreted to strictly limit the ability of states to change their election laws, draw district lines, or fiddle with voting rights to the state legislatures and nobody else.  Following this theory would eliminate popular referendums in states like Arizona which have established independent commissions to draw voting districts and congressional lines.  And it would strip state courts from the ability to interpret state voting laws under state constitutions. 

Their “theory” would allow state legislatures and governors to pass whatever laws they want and restrict the ability of the U.S. Supreme Court and state courts to overturn them because they violate either the U.S. or state constitutions. 

If that sounds like a stalking horse for an out-and-out return to the “state’s rights” theories of years past, you are absolutely correct.  I’ve been saying in this newsletter for some time that the new far-right majority on the Supreme Court is getting ready to overturn every precedent going back to the 1920’s, and now we’ve got the evidence that they are.  The discredited “Independent State Legislature” theory would allow states to reimpose segregation, enact laws that would violate the Civil Rights Act of 1964 such as allowing public access businesses like restaurants and hotels to discriminate on the basis of race or sexual orientation, or anything else they want to pass.

All power to state legislatures is the theory of the four far-right justices on the Supreme Court, in other words.  We are not going to recognize the country we live in when the likes of Gorsuch, Thomas, Alito, Kavanaugh, Roberts and Barrett are finished shredding our Constitution.