So, has anybody heard about this "independent State Legislature" case going before the Court next term?
To me, it's fascinating, in terms of interpretation. The Constitution provides the following:
“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.”
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
Up for review is, what is meant by "Legislature"?
The plain language is pretty clear, in my opinion. A state Legislature is a state's legislative body, whether that be a House of Commons, a bi-cameral legislature, etc. What's not included: governors, secretaries of state, citizen's referendums, etc.
But, precedent has disagreed. Legislatures have had their decisions challenged in state court, have been vetoed by governors, have divested their authority to commissions, etc. And, pretty much every time this has happened, the Court has upheld the authority of a non-legislative body to weigh in on -- and sometimes block -- the legislature's decision.
Many conservatives / textualists thinks this line of cases has gotten it wrong. What's particularly interesting to me is that the Court is considering a North Carolina case where the state court overturned the Legislature's writing of a state electoral map, *where the legislature had granted the courts that authority*.
It's law nerd stuff, but if only legislatures can determine election laws, can they delegate the right to determine that authority to state courts? To commissions? To citizen referenda? Can governor's veto their decisions? What happens if a state constitution limits the legislature? Does the Federal court find that the State constitution is invalid / overridden?
This is either going to preserve the status quo, or is going to be a major shift. The media coverage, of course, is going to focus on the power politics of it. But, for Justices who approach interpretation by looking at the words on the page first and foremost, I think there's a good faith question here. But, there's another key question: even if the Court has gotten it wrong in the past, does respect for precedent determine that we live with the current status quo?
For whatever it's worth, Scalia / Thomas / Rehnquist raised this at least 20 years ago, and now Gorsuch / Thomas / Alito / Kavanaugh seem to be on board. Roberts, Sotomayor, Kagan and presumably KBJ are against. It could come down to ACB as the swing vote.