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The Supremes decide whether states can have diff rules for federal elections?

Oh, I'm coming clean. I don't like the idea of wide-scale mail-in balloting unless you have some way to verify identity and citizenship. The fact that a small number of states plays by different rules than everyone else seems like bullsheet, especially since those rule impact how we elect a President.

There are plenty of federal laws that impact every American. It's time we had some consistent election standards to protect the integrity of our election process.

Thank you, ladies and gentlemen. I approve of this message.

T Snitz Esq for Congress.

Can the Supreme Court Define a State’s ‘Legislature’?

Whether state judges can review election laws is up to the state constitution, not the justices.

By Steven G. Calabresi, WSJ

Dec. 5, 2022 6:24 pm ET

The Supreme Court hears the most consequential case of the 2022-23 term Wednesday. Moore v. Harper is generally framed as a case about election law, but it’s more properly understood as being about states’ rights. The question is whether federal courts can dictate to the states how their legislatures are composed.

The case emerges from North Carolina, where in 2021 state lawmakers enacted new congressional maps. When state courts ruled that the maps ran afoul of the state constitution, lawmakers petitioned the Supreme Court for relief, claiming that the state courts had violated the U.S. Constitution by reviewing the maps. They argue that because the Constitution empowers state legislatures to draw congressional maps and appoint presidential electors, state courts can’t deem lawmakers’ actions unconstitutional under state constitutions.

Under the lawmakers’ “independent state legislature” theory, which three justices floated in Bush v. Gore (2000), an unchecked state legislature could give the state’s electoral votes to the loser of the popular vote—even if the state constitution orders that the people decide. That’s the theory by which in 2020 Donald Trump hoped GOP legislators in Arizona, Georgia, Pennsylvania and Wisconsin would hand him their states’ electoral votes—even though he had lost at the polls.

An affirmation of the theory would be a constitutional travesty. It’s true that the U.S. Constitution empowers state legislatures to draw congressional districts and determine how presidential electors are chosen. But it doesn’t authorize the Supreme Court to decide what a state legislature is or isn’t. State constitutions define the state legislature, subject only to the U.S. Constitution’s requirement that “the United States shall guarantee to every state in this union a republican form of government.”

This means that no state could be a theocracy, a monarchy, an aristocracy, a dictatorship or an oligarchy, or subject to mob rule. But the states are free to have a unicameral legislature, as Pennsylvania and Georgia did in 1787 and Nebraska does now. They can deny governors an unqualified veto power, as 12 out of 13 states did in 1787. The states can by direct democracy opt for nonpartisan redistricting commissions, as several states have recently done. The states are even free to adopt parliamentary systems of government, although none have ever done so.

The North Carolina lawmakers’ theory conceives of “state legislatures” as referring to state houses and senates alone. But no modern state legislature comprises only those two bodies. Twenty-six states allow for lawmaking by initiative or referendum, and all 50 states give the governor a veto. If the North Carolina Constitution allows for judicial review of congressional maps or of the selection of presidential electors, federal courts have no business saying otherwise. All of these matters are political questions, as the U.S. Supreme Court court held in Pacific States Telephone & Telegraph v. Oregon (1912), which allowed states to make law by direct democracy.

The Guarantee Clause doesn’t even mandate the separation of powers at the state level. In Calder v. Bull (1798), the U.S. Supreme Court upheld a decision by Connecticut’s Legislature to order a new trial in a civil lawsuit. Three of the four justices who decided the case agreed that the state could make its legislature superior to its state courts, just as the British House of Lords was the highest court in the land. These justices argued that the Constitution left the states free to organize their institutions in any way they wanted, so long as they were republican in form.

It has long been settled practice that a state’s electors go to the winner of the state’s popular vote. No legislature has ever nullified the popular vote. Since the founding, state courts have enforced this policy, and nothing in the U.S. Constitution bars such judicial review. If the Supreme Court now overturns that centuries-old settled practice, it would be a power grab and an assault on states’ rights, democracy and the original meaning of the Constitution.

Mr. Calabresi is a professor of constitutional law at Northwestern University and served in the Reagan White House and Justice Department.

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