By DEACON MIKE MANNO
So many things these days seem to revolve around politics. Now that’s not bad in and of itself for after all we live in a society that makes the claim of being a democracy (actually, it’s a republic, but that’s not my point today).
Our problem is not with politics, but with the extreme partisanship that is being displayed today. I understand that none of this is governed by the Marquess of Queensberry, but in the political sport of today, hitting below the belt, eye gouging, and all the rest all seem to be — well not illegal, as such, but not exactly wrong either.
One way the game is played is by continually changing the rules of the game to serve someone’s advantage. We’ve seen that happen in the last presidential election. Claiming emergency powers due to the pandemic, numerous states and localities adopted special rules that nullified the legislative procedures that were adopted to govern election conduct. Most of which were enacted in blue states and counties and seemed designed to increase the vote totals for one side.
The Republicans cried “foul” while the Democrats struck up “Hail to the (new) Chief.”
In the wake of the 2020 election, states that tried to amend their election laws, to correct perceived irregularities were called racist, homophobic, Nazi, and a few other things that were not as nice.
But we may have found a corrective, a potential Supreme Court decision that could very well put an end to the idea that election rules can be changed or bent under the pretext of an emergency.
It comes to us in the form of a dispute over how to draw congressional lines in North Carolina after the recent census. The legislature did so, as expected. However the North Carolina Democrats, and some independent groups, challenged the new electoral map and filed suit to stop it from taking effect. After a legal battle that went up to the State Supreme Court, it found that the legislature’s map did not provide for a “fair” or “free” election and ordered the lower court to develop a new map.
The new map, approved by the court with the help of several election experts, and input from other favored groups, was adopted. The Republicans went to the U.S. Supreme Court to block the use of the new map in the 2022 election, but the court refused to hear the case, thus the other map will be used in this year’s congressional election.
But the Republicans didn’t give up. Accepting the temporary defeat, they pressed their arguments and the court — just a few weeks ago — agreed to hear the matter during its next term.
So big deal. Why do we care?
Simple. We care because the question the Supremes will grapple with is whether a state court can overturn the act of its legislature proscribing matters pertaining to the election of the state’s congressional delegation. And here is the key constitutional provision upon which the issue will turn, Article I, Section 4, Clause 1 of the United States Constitution:
“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 place of choosing Senators.”
(Senators at the time were to be chosen by the legislature.)
The argument that the Republicans are making is that the Constitution provides that state legislatures — not judges — “bear primary responsibility for setting election rules.” Thus the “judge-made map” should be thrown out and the legislature’s map reinstated.
That concept, the “independent state legislature” theory, which claims that only the legislature has the power to regulate elections, has, in the past, been embraced by several of the current justices, including Thomas, Gorsuch, and Kavanaugh.
Of course that position is untenable for the other side. One of the State Supreme Court justices, Robin Hudson, wrote:
“Today, we answer this question: Does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote? Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others?”
And an opinion article in The Washington Post said, “The theory would disable state courts from protecting voting rights in federal elections by eliminating state constitutional protections in those elections.” And the Brennan Center for Justice claimed that the Republican interpretation of the legislature’s powers “could make it easier for state legislatures to suppress the vote, draw unfair election districts, enable partisan interference in ballot counting.” Of course the “how” was never explained.
And the Democrats’ bubbly and ever-present doorknob, Cong. Alexandria Ocasio-Cortez (D., N.Y.), was quick to call this “a judicial coup in progress.”
So now we know where the parties — and their followers – stand, what does this mean? The argument here is over the constitutional provision of choosing members of Congress, but it is broader than that. Article II, Section 1 of the Constitution, applies the same standard for the selection of presidential electors: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress.”
Since November of 2020 conservatives and Republicans have complained about voting irregularities in the presidential election. There are still Trump voters who will never believe that their candidate lost in an honest election. The massive fraud claimed was hard to analyze, or even detect. But as time has passed most of those investigating the fraud claims have targeted changes made in the voting rules by state actors claiming that the changes were necessary due to the pandemic.
And, of course, it is easy to connect the dots when those changes are taken into account. Changes such as extending the hours, and sometimes days, to return ballots, applications for and absentee ballots being mailed automatically without any request, “drop boxes” that were unattended and placed unmonitored in out of the way places where voters could drop completed ballots, and scores of other changes that could easily affect the outcome of a close election.
Unfortunately in most of the cases lawsuits were dismissed as not presenting a ripe question, and afterward they were dismissed as coming late and involving an open legal question that was not yet ready for resolution in the aftermath of an election.
If the position of the North Carolina legislature is upheld by the Supreme Court we may be in a position to eliminate all that folderol and protect the constitutional legitimacy of election laws enacted by the duly constituted bodies authorized to do so. Otherwise we may be required to relive the sins of the past, and again without any remedy.
The case, if you want to follow it, is Moore v. Harper (docket 21-1271) and is scheduled for an October argument before the U.S. Supreme Court.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday morning at 9:30 CT on Faith On Trial on IowaCatholicRadio.com.)
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