Did You Know the Supreme Court Will Finally Hear a Case This Fall on Election Law — That They Punted on Back in December 2020?
By Jim Hoft
State Legislatures are full of political hacks. We don’t trust them. Unfortunately, at times we trust courts – state or federal – even less.
Take, for instance, the 2020 presidential election.
In the lead-up to the 2020 primaries and general election, Democrat state officials in every battleground state and many others, implemented illegal unilateral decisions that radically enabled illegal voting contrary to established law. These baldly partisan decisions were challenged in courts across the nation, with courts either dismissing the acts as unimportant, refusing to take action, or else upholding the propriety of the acts.
And, of course, we know what happened after the election: bent state and federal courts doubled-down and rubber-stamped election fraud – and even sanctioned lawyers who fought election fraud.
And even the US Supreme Court refused to hear the Texas motion that would have nullified the presidential elections in Pennsylvania, Michigan, Georgia and Wisconsin. SCOTUS claimed that Texas had not demonstrated a judicially recognizable interest in the manner.
Over 18 states joined Texas in the lawsuit aginst Pennsylvania.
Texas argued these four states violated the US Constitution because they made changes to voting rules and procedures through the courts or executive actions. But these states did not make the changes through the state legislatures as spelled out in the US Constitution.
At the time Justice Clarence Thomas argued in dissent that the Court failed to provide clear rules for future elections.
“One wonders what the Court waits for. We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us. I respectfully dissent,” Thomas wrote on Monday…
…For more than a century, this Court has recognized that the Constitution operates as a limitation upon the State in respect of any attempt to circumscribe the legislative power to regulate federal elections,” he continued, quoting Supreme Court precedent. “Because the Federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections, petitioners presented a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding the clearly expressed intent of the legislature.”“But elections enable self-governance only when they include processes that give citizens (including the losing candidates and their supporters) confidence in the fairness of the election,” Thomas added, quoting a recent Supreme Court case that held, “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”“Unclear rules threaten to undermine this system. They sow confusion and ultimately dampen confidence in the integrity and fairness of elections,” he explained. “To prevent confusion, we have thus repeatedly — although not as consistently as we should — blocked rule changes made by courts close to an election.”
Most Americans assumed that was the end of the 2020 election legal challenges. But that is not the case. One case will be argued before the US Supreme Court this fall that could change this formula.
The US Constitution’s “Elections Clause,” Article I, Sec. 4 states:
“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 choosing Senators.”
The text makes it clear that the State Legislatures control the specifics of how elections run in their states unless Congress says otherwise. This is known as the “independent state legislature theory.” However, this is not, in fact, how things have been occurring. Gamesmanship by partisan state officials and even decisions of the legislatures have been challenged in state courts, with the states’ highest courts often trumping the will of the legislature.
Surprisingly, the Supreme Court has not, heretofore, explicitly ruled on this issue.
The Supreme Court will hear the Moore v. Harper case this fall.
Scotus Blog reported in June:
The Supreme Court will take up a case from North Carolina next term that could upend federal elections by eliminating virtually all oversight of those elections by state courts. On Thursday, the justices granted review in Moore v. Harper, a dispute arising from the state’s efforts to draw new congressional maps in response to the 2020 census.
The doctrine at the heart of the case is known as the “independent state legislature” theory – the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without interference from state courts. Proponents of the theory point to the Constitution’s elections clause, which gives state legislatures the power to set the “Times, Places and Manner of holding Elections for Senators and Representatives”…
The issue returned to the Supreme Court in 2020, when the justices turned down a request by Pennsylvania Republicans to fast-track their challenge to a Pennsylvania Supreme Court ruling that required state election officials to count mail-in ballots received within three days of Election Day. In an opinion that accompanied the court’s order, Justice Samuel Alito (joined by Justices Clarence Thomas and Neil Gorsuch) suggested that the state supreme court’s decision to extend the deadline for counting ballots likely violated the Constitution.
After the Republican-controlled North Carolina legislature adopted a new congressional map in early November 2021, a group of Democratic voters and non-profits went to state court to challenge the map. They contended among other things that, because the state is roughly divided between Democrats, Republicans, and unaffiliated voters, the new map – which likely would have allowed Republicans to pick up two more seats in Congress, giving them as many as 10 of the state’s 14 seats – was a partisan gerrymander that violated the state’s constitution.
In February 2022, the North Carolina Supreme Court blocked the state from using the map in the 2022 elections and ordered the trial court to either approve or adopt a new map before the end of the month. The trial court adopted a new map, drawn by three experts appointed by the court…
…After considering the case at three consecutive conferences, the justices granted review on Thursday. The case will likely be argued in the fall, with a decision to follow sometime early next year.
Last weekend The Gateway Pundit spoke with Oath Keepers founder and president Stewart Rhodes, from his prison cell in Virginia waiting for his upcoming court case, and Attorney Jonathon Moseley, who represents Stewart.
** Please donate to the Stewart Rhodes Legal Defense Fund here if you can.
Stewart Rhodes and Moseley argue in this interview that the upcoming Supreme Court case Moore v. Harper will not only decide state election law in the future but will call into question the legality of the 2020 election.
According to Stewart and John, the Supreme Court feels it is safer today to deal with this issue than it was following the controversial 2020 election.
This is an amazing discussion.
In the Moore v. Harper case – the petitioners argue that the US Supreme Court should determine that the “independent state legislature theory” is correct and that legislatures – not judges – make elections policy in their states.
The petitioners are challenging decisions of their own state supreme courts – in North Carolina and Pennsylvania, respectively – which directly overruled the will of the legislature in redistricting post-census and adopting a new congressional map. In each case, the state supreme courts overruled the legislatures and forced them to adopt new maps.
Late Chief Justice William Rehnquist, along with Late Justice Antonin Scalia, Justice Clarence Thomas and possibly Justice Samuel Alito are among recent justices who have openly advocated for the independent state legislature theory – that is, the theory that is actually explained in plain English in the text of the Constitution…sort of like, “the right … to … bear arms shall not be infringed.”
The explosive will be argued this fall, with an opinion of course not coming until after the 2022 election.
Of course. Importantly, SCOTUS could have dealt with these problems previously. The petitioners in these two cases (and scores of others) had previously teed it up, but with the exception of Alito and Thomas, SCOTUS “took a powder.”
Now that the issue is squarely before the Court, we can only hope SCOTUS will do the right thing and simply read the damn text of the Article I, Sec. 4 of the Constitution.
** Please donate to the Stewart Rhodes Legal Defense Fund here if you can.