“Indecent State Legislature Theory” & and why it can NEVER EVER be taken seriously.

[Rube Reaper]

Let me be explicit about just how weak the arguments are supporting the independent state legislature doctrine: Any judge who, after reading the briefs in this case, concludes that the ISLD has merit is either too incompetent to practice law or too blinded by ideology to sit on any court.

The deranged Supreme Court case that threatens US democracy, explained

Moore v. Harper is a test of whether this Supreme Court can ever be trusted with power.

www.vox.com

The ISLD is one of those legal arguments that, if I can borrow some choice words from the late Justice Antonin Scalia, periodically rises “like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”

 

[Rube Reaper]

So the argument for the ISLD is deceptively simple, and can be summarized in three sentences: The Constitution says that the rules governing federal elections shall be made by each state’s “legislature.” A governor, a state supreme court, or a state constitution is not the “legislature.” Checkmate, libs.

The problem with this argument is that, at least at the time when the Constitution was drafted, and popularly elected legislative bodies like the US Congress were a relatively new innovation, the word “legislature” did not mean “the elected body of men and women who make up the House and Senate.” It meant, as the Supreme Court explained in Arizona State Legislature, “the power that makes laws.”

Indeed, if you doubt this definition of the word “legislature,” I encourage you to read the Moore petitioners’ brief. Specifically, I encourage you to read page 14 of their brief, where they quote four dictionary definitions of the word “legislature.”

Only one of these four definitions, from a dictionary published four decades after the Constitution was drafted, even plausibly could be read to support the ISLD. That 1828 dictionary defines the word “legislature” to mean “the body of men in a state or kingdom, invested with power to make and repeal laws.” Notably, even this definition does not state that these men must serve in a formally organized legislative branch. And the other three dictionaries quoted by the Moorepetitioners define the word “legislature” the same way it was defined in Arizona State Legislature.

One 1755 dictionary defines the word to mean “the power that makes laws.” Another, from 1797, offers an identical definition. A third, from 1763, defines the word to mean “the Authority of making Laws, or Power which makes them.”

This, alone, is fatal to the Moore petitioners’ arguments — and to Gorsuch and Kavanaugh’s. Properly understood, the federal constitution does not give primacy to a state’s House and Senate. Rather, it says that state election laws should be enacted through whatever process the state uses to make any other law. That may involve a gubernatorial veto, a popular referendum, or a constitutional amendment process that writes some of a state’s election laws into its constitution. A state could even give a portion of its lawmaking power to its judiciary, if it chose to do so.